#### NATHANIEL S. GILBERT, Respondent, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

*Delivery of property to ca/rri&r*— *when, title vests in*consignee— *Demand.*

The plaintiff entered into an agreement with Park & Co. of New York, by which he was to fill certain casks furnished by them, with cider, have them loaded upon the cars at Lockport, each car to contain fifty casks, take a receipt therefor, and transmit that, with a draft for the price, to the purchasers. After certain of the casks had been delivered to the defendant, and while it was waiting for enough to fill a car, eleven of them were found to be missing. *Reid,*that the title to the cider did not vest in the purchasers until a car was loaded and a receipt taken; and that plaintiff was entitled to maintain an action for the cider. In such a case no demand need be made before commencing the action.

Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

The action was brought to recover the value of eleven casks of *379cider delivered to the defendant, to be transported to New York. It appeared that the casks in which the cider was placed, were sent to the plaintiff by Park & Co., the owners of them, to be filled with eider and then returned to them over the defendant’s road; from Lockport to the city, of New York. The arrangement was, that plaintiff should deliver the cider in the casks at the defendant’s depot in Lockport, and have it loaded upon a car, each load to consist of fifty casks, take a shipping receipt for the cider when so loaded, and transmit that, accompanied by a draft for the price, to the purchaser. After a portion of the cider had been received by the defendant at its freight-house at Lockport, and-while it was waiting for casks enough to be delivered to fill a car, it was discovered that eleven of the casks first delivered were missing. This action was brought to recover the value of the cider so lost.

*Laning*& *Willett,*for the appellant.

The cider had been sold and delivered to Rufus Park & Co., according to the terms of sale, and the plaintiff had neither title nor possession of any of the property lost, at the time such loss occurred. *(Groat et al.*v. *Gile,*51 N. Y., 431-437; *Olyphant*v. *Baker,*5 Denio, 379, 382; *Terry*v. *Wheeler,*25 N. Y., 520, 525; *Waldron et al.*v. Romain, 22 id., 368; *Krulder*v. *Ellison,*47 id., 36; *Thompson*v. *Fargo,*49 id., 188; *Rogers et al.*v. *Wheeler et al.,*52 id., 262, 266.) If the cider was received by the defendant as warehouseman, then the plaintiff could not recover, no demand having been made for the property. *(Whitney*v. *Slawson,*30 Barb., 276; *Brown*v. *Cook,*9 Johns., 361.)

*Thomas M. Webster,*for the respondent.

No demand was necessary. The defendant .was requested to ship it, and failed to do so, and the plaintiff had to replace the cider for shipment. *(The Bank of Rochester*v. *Jones,*4 N. Y., 497; *Jones*v. *Bradner,*10 Barb., 193.)

Mullin, P. J.:

So far as Daniels, J., considered the questions arising in this case, I entirely concur with him in his opinion, delivered on *380deciding the motion for a new trial.' There are two or three points not discussed by him, which it may be proper t.o consider briefly.

The appellant’s counsel insists, in his points on the argument of the appeal, that on delivery to the defendant of the barrels of cider that have been lost or mislaid, the title vested in Park *&*Co., the consignees, and that thereafter the plaintiff had no interest in the property.

It was competent for the parties to the sale to agree as to what acts should be done by the vendor before title should vest in the purchaser; and until such acts were done the title would not pass. *(Kelley*v. Upton, 5 Duer, 336; Story on Sales, § 296, *a.)*The title to property does not pass upon the completion of a contract of purchase and sale, until delivery of the property, unless it is so intended by the parties. *(Macomber*v. *Parker,*13 Pick., 178; *Reddle*v. *Varmer,*20 id., 280; *Olyphant*v. *Baker,*5 Denio, 379.) It is manifest in this case that such was not' the intention of the parties. No credit for the price was contemplated, yet, if the title passed, the plaintiff could not have sued for the price until he had not only delivered the property to the defendant, but had it loaded on the ears and obtained its receipt for the same on account of the purchaser. The'title might pass to the purchaser, and yet, by the agreement, the purchase-money not be payable until the happening of some future event, or until the performance of some act by the vendor.

In the absence of any such specific agreement as to delays of payment, and further acts by the agreement to be performed by the vendor, will not the law presume that it was the understanding of the parties that title should not pass until the performance of those acts, rather than that the agreement was that title should pass and payment be postponed 2 It seems to me that it would.

The defendant was not liable to the plaintiff as a carrier. The cider was not to be carried for him, but for the purchaser. Until the title passed to the purchaser, the cider belonged to the plaintiff, and defendant held it as warehouseman merely. When the title passed it held the property as carrier for the consignee. *(Lakeman*v. *Grinnell,*5 Bosw., 625; *Blossom*v. *Griffin,*13 N. Y., 569; *Coyle*v. *Western R. R. Co.,*47 Barb., 152.)

*381When property is sold to be shipped by cars or other public conveyance, ordinarily the title passes on delivery to the carrier; but, as I have already suggested, it was competent for the parties to agree upon the acts which the vendor should perform before the title passed; and in this case the title did not pass until defendant’s receipt was obtained; and as, by the arrangement between the plaintiff and defendant, the cider was to be shipped by the carload, and the car held fifty barrels, the receipt could not be required by the plaintiff until the fifty barrels were put on the car.

Upon the evidence in the case, no demand of the cider was necessary before suit. It was placed, by the direction of the agents of the defendant, on a platform, erected for the deposit of property intended to be forwarded by its cars.' Upon such delivery it became responsible for it; and it was clearly established that eleven barrels were delivered to it which it did not account for; five of which, it seems to have been conceded, were carried off by some person other than the plaintiff; and the remaining six were shown to have been delivered, if Shook was believed; and which defendant’s agent conceded could not be. No demand under such circumstances was necessary.

The judgment and order refusing a new trial must be affirmed.

Judgment and order affirmed.