WHO STANDS THE 



SHIPPING LOSS? 



Constantly altercations arise between buyer and seller as to who is to 

 blame for mishaps in delivery and who is to sta^id the loss so incurred. 

 Clearer comprehension of the legal view of the relations of the two will 

 obviate many misunderstandings. 



VERY year there are hun- 

 dreds, perhaps thousands, 

 of controversies between 

 members of tlie florists', 

 seed and nursery trades 

 over shipments made in the 

 normal course of business. 

 The parties involved there- 

 in are reputable — we are 

 not concerned here with 

 any who are not — and make their claims 

 in good faith. This situation is not pe- 

 culiar to this line of business; it is 

 common to every industry. Most of the 

 disputes are needless and result in noth- 

 ing but bad feeling; they have no basis 

 for legal action, for they arc the result 

 of ignorance or misconception of the 

 principles laid down by the 

 law in such matters. Knowl- 

 edge of these legal prin- 

 ciples will aid every florist 

 in the transaction of his 

 business. He will then 

 know when he has basis for 

 complaint and when the 

 responsibility rests with 

 him. He will avoid need- 

 less controversies and con- 

 sequent ill feeling. He will 

 facilitate his own business 

 and maintain amicable rela- 

 tions with those with whom 

 he deals. He will also, per- 

 haps, save the expense of 

 hiring a lawyer to tell him 

 he has no case. A good deal, 

 indeed, may be gained by a 

 knowledge of the legal prin- 

 ciples involved in makin}; 

 shipments and ridding one- 

 self of sonic jirevalent mis- 

 conceptions. 



Delivery. 



Perhaps one of the most 

 common misconceptions is 

 that goods shipped by the 

 seller to the buyer are not 

 "delivered" to the buyer 

 until they have arrived at 

 their destination. This is 

 true only where the seller 

 has agreed to deliver them at the <les- 

 tination, or where he has reserved title 

 by shipping under an order bill of lad- 

 ing not transferred to the buj'er until 

 after completion of the transportation. 



Primarily it is ])resumed that goods 

 are intended to be delivered wherever 

 they happen to be at the time of sale. 

 So, exce]>t for understanding to the 

 contrary, all sales would be presumed to 

 be on the "cash and carry" basis, 

 whether a retail sale of a plant or a 

 wholesale transaction lietween parties 



By A. L. H. STREET, 

 Attomey-at-Law. 



living jn different cities or different 

 countries. 



To some extent this presumption has 

 been destroyed by trade customs. So 

 the retail florist who maintains no de- 

 livery system and who has not agreed 

 to deliver at the customer 's residence 

 or place of business, is not bound to 

 make delivery at any place other than 

 the store where the goods sold happen to 

 be when sold. But where the florist has 

 led the public generally to suppose that 

 deliveries will be made elsewhere, under- 

 standing that the customer may desig- 



THE LEGAL VIEW 



Whether a shipment is an express 

 parcel or a carload of freight, whether 

 it is of plants, bulbs, seeds or trees, the 

 law regarding the responsibility of 

 buyer, seller and carrier is explicit. 

 Its basic principle is: "A delivery of 

 goods by the seller to the carrier des- 

 ignated by the purchaser, is a delivery 

 to the purchaser, the carrier becoming 

 the agent of the buyer. ' Its interpre- 

 tations are equally definite, as explained 

 by a legal writer on this page. 



trade usage, it will be presumed in the 

 ordinary case to have been understood 

 that the seller would properly pack and 

 ship the goods for the buyer. 



But now comes the important point 

 to be kept in mind: Ordinarily, the 

 railway company, or other carrier of a 

 shipment, is to be regarded as the rep- 

 resentative of the buyer, and not the 

 representative of the seller. The fol- 

 lowing statement of the law can prob- 

 ably be supported by citation of an 

 apj)ellate court decision in every state 

 in the union: 



"Ordinarily a delivery of goods by 

 the seller to the carrier designated by 

 the purchaser, or to one usually em- 

 ployed in the transportation of goods 

 from the place of the seller 

 to thac of the purchaser, is 

 a delivery to the purchaser, 

 the carrier becoming the 

 agent of the buyer. The de- 

 livery should be of goods 

 of the proper quality and in 

 the proi)er quantity. The 

 fact that the purchaser has 

 a right of inspection and ap- 

 proval on receipt does not 

 change the rule. Delivery 

 to a carrier is not a de- 

 livery to the buyer if the 

 seller is bound to deliver 

 at the buyer's residence or 

 place of business, the car- 

 rier in such case being the 

 agent of the seller. * * * 



Law's View. 



nate any reasonable place within the 

 florist 's usual delivery limits will be in- 

 ferred. 



Trade Usage. 



And now it is no longer understood 

 that a buyer of goods to be shipped 

 to him from another point by the seller 

 is to go to the seller's place of business, 

 or send some one there, to get the goods 

 and ship them, although nothing may 

 lla^•e been specifically said concerning 

 dcliverv. In accordance with uiiivcisal 



"The delivery to carrier 

 must be such a transfer of 

 jiossession as will remove 

 the goods wholly from the 

 dominion of the seller, and 

 such as to entitle the pur- 

 chaser to demand the goods 

 of the carrier; consequently 

 it is not a delivery to the 

 buyer if the seller reserves 

 the right of disposal of the 

 yjoods, by consigning them 

 to his own order, or by tak- 

 ing the bill of lading in his 

 own name ami rotaiiiing the siinie. or 

 making the doli\erv of the bill of lading 

 i-onditi(inal on the payment of the price. 

 It', however, the bill of lading, although 

 taken out in the name of another, is 

 ilulv indorsed and tendered to the buver, 

 the delivery is good." (.35 Cyc. 193".) 



Thus it will be seen that the ordinary 

 contract for a sale of goods to be shipped 

 direct to the buyer, nothing being said 

 as to where delivery is to be made, is 

 substantially the same thing as a con- 

 tract specifying that delivery is to be 



