190 THE SALE OF TIMBER PRODUCTS 



already disposed of by his vendee, was held not to constitute 

 a waiver of a right to sue for the conversion of the remainder. 1 



134. Delivery to a Common Carrier. Where a con- 

 tract for the sale of timber products is silent as to the place 

 of delivery, delivery of the property by the vendor to a com- 

 mon carrier for transportation to the buyer will of itself act 

 to transfer the title from the vendor to the vendee to whom 

 the property is consigned by a bill of lading. In such a case 

 the law considers the carrier to be the bailee of the con- 

 signee and not of the consignor. 2 If a part or all of the 

 property is lost or damaged after shipment the carrier is il- 

 able to the consignee and not to the consignor, and the car- 

 rier is under no obligation to hold the property for the use 

 or protection of the consignor should doubt arise as to the 

 ability or intention of the consignee to pay the purchase 

 pi ice of the property. However, this presumption of deliv- 

 ery rests upon the implication of intention to deliver shown 

 in the billing of the property to the purchaser, and if it may 

 fairly be gathered from the language of the bill of lading or 

 from the terms of such bill and the surrounding circum- 

 stances that the vendor did not intend that the delivery to 

 the carrier should constitute a delivery to the vendee, the 

 shipment will not operate as a transfer of title to the vendee. 

 If the bill of lading calls for a delivery to the "holder," the 

 carrier will be required to deliver to the one who presents 

 the bill, but if the property is consigned to the vendor or to 

 his order, the carrier will be liable to the consignee only for a 

 proper delivery at the point of destination. As a means of 

 protection against loss through the extension of credit as 

 well as to meet certain other conditions of trade, vendors 

 of timber products, like other merchants, have been accus- 

 tomed to sometimes ship lumber consigned to their own 

 order and to attach to the bill of lading a bank draft drawn 

 upon the vendee as payee. When this is done the carrier is 

 authorized to deliver the property to the vendee only upon 

 condition that the draft be accepted by him. 3 Under such 

 a shipment no contractual relation exists between the car- 



1. Bryant v. Kenyon (Mich.) 81 N. W. 1093. 



2. A. J. Neimeyer Lbr. Co. v. Burlington & Missouri Riv. B. R. Co., 54 Neb. 321. 



3. The Prussia, 100 Fed. 484. 



