
    Newman Dube and Schinen Dube, Respondents, v. Liberty Clothing Company, Appellant.
    (Supreme Court, Erie Special Term,
    June, 1915.)
    Sales — when title did not pass to buyer — seller in case of non-delivery must look to carrier for value of goods.
    Where the buyer o£ goods objected to a part, asked for instructions and was permitted to return them, the title thereto never passed to the buyer.
    A delivery of the goods to a common carrier was a delivery to the seller and in ease of non-delivery such seller must look to the carrier' for the value of the goods.
    Appeal from a judgment of the City Court of Buffalo in favor of the plaintiffs.
    Vernon Cole, for appellant.
    Frank Gibbons, for respondents.
   Woodward, J.

The plaintiffs bring this action to recover the purchase price of certain goods, wares and merchandise which were- concededly sold to the defendant at the agreed price of $124 and upon which the defendant has paid $43.75, and judgment has been entered against the defendant for the sum of $80.25, with the costs of the action. The defendant appeals from the judgment of the City Court.

There is no substantial dispute about the facts. When the consignment of goods arrived at the defendant’s place of business, it was found that some of the goods did not conform to the samples. Some correspondence ensued and the plaintiffs directed the defendant to return such of the goods as it did not desire to keep. The defendant claims to have delivered the rejected goods to the New York Central and Hudson River Railroad Company, consigned to the plaintiffs, whose place of business is in New York city, and at the time of making this return the defendant sent' its cheek for forty-three dollars and seventy-five cents, which was retained and used by the plaintiffs. The plaintiffs claim that they did not receive the goods claimed to have been returned by the defendant, and, while the New York Central and Hudson River Railroad Company shows that it delivered the consignment to some one under a written order claimed to have been signed by the plaintiffs, the latter insist on holding the defendant liable for these goods, and have recovered a judgment for the value of the same.

There is no question of fraud or bad faith in the matter; no one suggests that the defendant did not deliver the goods to the railroad company for transportation to the plaintiffs, but the latter contend that as a matter of law the defendant was bound to return the goods to the possession of the plaintiffs as a condition of receiving credit for the same. The plaintiffs’ brief says: “It will be observed that the instructions of the plaintiffs, to which the defendant acquiesced, were not to ‘ ship ’ the goods, but to return the goods to the plaintiffs. Even considered most favorably for the defendant, it was a question of intent and meaning. If the intention of the parties was that the defendant should be relieved of responsibility for the return of the goods when it delivered them to a common carrier, the proposition is one thing; if the intention of the parties was that responsibility should not be released until the goods were actually delivered to the plaintiffs, it is another thing,” and upon this proposition the respondents rest their case.

The plaintiffs are doing business in; the city of-New York, and the defendant is engaged in business in the city of Buffalo. The goods, it may be assumed, were sent by freight through a common carrier, and when the plaintiffs authorized the defendant to return the goods, without specifying how they should be returned, there can be no question that the defendant had a right to construe this language as authorizing the delivery of the goods to a common carrier. The defendant had not accepted these goods. While, under ordinary circumstances, no doubt, the defendant would be deemed to have accepted the entire shipment by accepting a part, in the case now under consideration the defendant objected to a portion of the goods and asked for directions, and the plaintiffs permitted it to return the portion objected to, and I am of the opinion that the title never passed to the defendant of that part of the goods to which objection was made. If this was the case, the defendant was the agent of the plaintiffs in returning the goods, and, if the railroad company has failed to deliver the same to the plaintiffs, the latter probably have a remedy against the common carrier. We can see no ground for holding that there was anything in the letter from the plaintiffs which justified the theory now contended for by the plaintiffs; a direction to return the goods was a direction to return them by a responsible carrier in any intelligent understanding of language used in connection with a transaction of this character, and, if there was any question about it, the language would be construed most strongly against the user, and would justify the defendant in its conduct. We think a delivery of the goods to a common carrier was delivery to the plaintiffs, and that they must look to the railroad company, rather than to the defendant for their value.

The judgment of the City Court should be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed and new trial granted, with costs to abide event.  