
    Alling et al v. Bach.
    Where a party proposes to another to purchase merchandise from him for a certain price, and that the merchandise shall be shipped to him at particular place, to he there paid tor before delivery, to which the latter assents, the sale will he perfect from the moment of the agreement for the object and the price/and the subject of the sale will be thenceforth at the risk of the purchasei*, though not delivered to him; and if it perish before delivery, without the fault of the seller, he will he- exonerated from-the obligation to deliver, but the purchaser will be bound for-the price. G. C. 1903,2431, 2442.
    APPEAL from'* the-Fifth District Court of New Orleans, Buchanan, I. The facts of the case are stated in the opinion infra'.
    
    
      Hoffman, for the appellants.
    The court below erred in considering that the sale was made on a suspensive-condition as to the delivery. The Civil Code declares that conditional obligations are such as depend on an uncertain event. Here there was nothing uncertain in the obligation to deliver. The sale was complete, independent of the delivery.- See Delvincourt, vol. 2, p. 16, note 1; p. 52G, note 2; p. 537, note 3. Civ. Code,-2414, 2431-, 2437, 2442, 2443, 2446, 2450, 2452, 2456, 2458, 2459, 2527, 2528. Pothier, Vente, pp. 179,180. 18 La. 235. 3 Rob. 331.
    
      L. Peirce, for the defendant.
    This is an agreement to take effect in future, on account of the postponement of the payment of the- price, and of the delivery of the goods. The rule in such a case is, that if nothing remains to be done on the part of the seller, as between him and the buyer, before the goods purchased are to be delivered; the property in the goods immediately passes to the buyer, and-that in the price to the seller; but if any act remains to be done on the part of the seller, the property does not pass until that act has been done. In this case the seller was to ship the goods to New Orleans, and they were to be paid foi" on delivery; the transfer of the goods to New Orleans was part of the contract,-and a condition precedent; the seller had still something to do. The meaning of this stipulation by the purchaser was to free himself from the expense of insurance, and from all costs of charges, freight, warehousing, &c. The seller’s duty was to have insured ; he does not declare whether he did or not; he has neglected his own interest and is his own insurer.
    In the case of Tarlin-gv. Barton,-6 B. &C. 362, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field, for ¿6145; the contract was dated 4th January, the money to be paid the 4th February ; and the hay to stand upon the premises until the first day of May; the hay not to be cut until paid for. The purchaser accepted the sellers draft on him for ¿6145, dated 4th January, and payable at one month. The hay- was consumed by fire on the samé field. Held to be the loss of the purchaser, because there was nothing that remained to be done by the vendor as between him and the vendee.
    In Pragano v. Long, 4 B. & C. 219, the plaintiff, residing in Naples, sent an order to Mason Sf Sons, of Birmingham, for a cask of hardware, to be despatched to him on insurance being effected; terms, three months’ credit from the time of the arrival. The cask was lost on the quay at Liverpool, before being put on board the vessel for Naples. Held to be the loss of Pragano. The arrivnl at Naples was not a condition precedent. The court, Bayly, J., says: “If the goods were not be paid for unless they arrived, why should Pragano insure them; that shows that the arrival was not considered as a condition precedent to the payment. If the goods arrived, three months from the arrival was to be the period of credit; if they did not arrive, still the plaintiff would be bound to pay in reasonable time after the arrival became impossible. If this were not so, the insurance would be altogether nugatory, for Pragano could not sue upon it, neither could the vendor, the interest being declared to béin Pragano.” Halroyd, Justice, in the same case says: “ It was not contended that Pragano was not liable to the vendor unless tlio goods arrived; but the order for insurance is decisive ofthat. The policy was to protect Pragano, and shows that lie considered that lie was to be the sufferer if tlio goods were lost on the voyage ; which he coulJ not have been, had the arrival of the goods been a condition precedent'to his liability to the vendors.
    In Simmons v. Sivift, 5 B. & C. the court says: “Generally speaking, when a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying.the price. If any-thing.remains to be done on the part of |the seller, until that is done the property is not.changed. See also 2d Bing. p. 146.
    In the case before the court, the seller liad something to do.to the goods.; .he was to land them in New Orleans.
   The judgment of the. court was pronounced.by

Koe, J.

The plaintiffs sue for the price of a quantity of merchandise, alleged to have been sold to the commercial firm of Bach Sf Meyer. Payment is insisted on by Bach, the only party cited, on the ground that the plaintiffs undertook to deliver the goods in New Orleans, but have failed to comply with their contract. There was a judgment for the defendant in the court below, and the plaintiffs have appealed.

The only witness present when the contract was entered’into-states, that Meyer, the partner of the defendant, proposed to the plaintiffs to sell him a bill of goods at certain cash prices, and ship them to the house of the plaintiffs in New Orleans, where he would pay for them before taking possession, to which the plaintiffs acceded. The goods.were marked-in the name of the defendants, shipped, and a bill of .lading taken for their delivery in New Orleans, to Wm. Ailing Sf Co. The vessel upon which the shipment was made was lost at sea, and the goods never reached their destination. The plaintiffs contend that the sale was complete, independently of the contract for the delivery at New Orleans; that they have performed their part of the contract; and that the loss of the goods must be sustained by the defendant. Tho defendant, on the contrary, urges that the contract was incomplete, and that the goods were at the risk of the plaintiffs until they were landed in New Orleans.

We think that the judge below erred, and that, under tho contract proved, tho plaintiffs are entitled to recover. The sale was perfect by the assent of the parties, from the moment of their agreement for the object and the price, although no delivery accompanied the contract. As soon as the contract of sale is complete, the object sold is at the risk of the purchaser, although it may not have been delivered to him; and, if it perish before the delivery without the fault of the seller, the latter is exonerated from the obligation to deliver, but the purchaser will still be bonnd to pay the price. C. C. arts. 2431, 2242, 1903. 4 Toul. no. 59. 7 Toul. no. 202. Pothier, Contrat de Vente, nos. 308, 309. Delvincourt, vol. 2, p. 526, note 2. The only additional obligation assumed by the plaintiffs was that of shipping tho goods to New Orleans, where the defendants were to take possession upon paying the price, .and this stipulation was performed.

Itis therefore decreed that the judgment of the District Court he reversed. It is further decreed that the plaintiffs recover of the defendant, Bach, the sum of six hundred and forty-five dollars and sixty-nine cents; and that the defendants pay the costs of both courts. 
      
       Eustis, C. J. was present when the opinion was first delivered in 'this case,‘hat was absent when an application for are-hoaring was finally disposed of.
     