#### The Edward Thompson Company, Plaintiff, *v.*Eugene F. Vacheron, Defendant.

(Supreme Court, Suffolk Trial Term,

September, 1910.)

Sales — Delivery — Sufficiency of delivery — Delivery to carrier.

Under an entire contract for the conditional sale of a set of law books to be shipped to the buyer as published but the title to remain in the seller until paid for, the seller bears the risk of transit, especially where no notice of the shipment is sent to the consignee; and, where one volume was lost in transit and was never received by the buyer, the seller may not maintain an action to recover the purchase price.

Action on subscription contract for books.

Walter Large, for plaintiff.

Sabine & Rose (Arthur H. Cameron, of counsel), for defendant.

Putnam, J.

This suit arises out of a conditional sale or subscription contract for several legal treatises im the form of an order (dated December 18, 1896) upon plain*84tiff: “Please deliver to me, carriage paid, the complete set of the second edition of the American and English Encyclopaedia of Law, consisting of 32 volumes; and the 4 volume Supplement thereto as issued, for which I agree to pay $7.50 per volume. * * * It is expressly understood that the right of property in all volumes unpaid for shall remain in Edward Thompson Co. until the same are wholly paid for.”

At the foot, was defendant’s signature over his office address in New York, and, in the lower left corner, the words “ Ship to Copake Iron Works, Columbia County, N. Y.” — where defendant resided.

Defendant was to pay instalments quarterly, beginning January 15, 1907; so that one payment came due April fifteenth, which was not paid. Volume 4 of the Supplement was issued in June, 1907, and on the twenty-seventh one copy was given to the American Express Company at Northport (with the freight prepaid) addressed to the defendant, “ Copake Iron Works, N. Y.” It seems, however, that it never reached defendant; and plaintiff’s proof of sending it does not go beyond this evidence of its delivery to the express company. The defendant thereafter demanded this volume, but plaintiff contended that, under the contract, the obligation of delivery had been duly performed.

On January 8, 1909, plaintiff brought suit for the quarterly instalments which had then matured, crediting the defendant with the first payment. The defense is that the contract is entire, and that plaintiff has broken its terms by reason of this non-delivery of volume 4 of the Supplement. On the special issue whether the express company had delivered the book to defendant, the jury’s verdict was in the negative.

Plaintiff’s acceptance of the subscription order required it to deliver the books (including this Supplement) to defendant, carriage paid. The direction “ Ship to Copake Iron Works” designated the place where defendant was to receive the books.

While upon defendant’s default in April the other side might have elected to rescind, the publishing company did *85not take that step. Instead, it went on under the contract sending out a later issue to defendant. Not having elected to enforce this first default, plaintiff waived it as a condition; after that this April non-payment could not he availed of to relieve plaintiff from its obligation to continue its later deliveries, as it had contracted to do.

Hence, the right to recover here turns upon the sufficiency of this delivery to the express company. Plaintiff cites instances of sales, wherein, upon the seller’s delivery to a carrier, title passes with the bill of lading to the purchaser, •and the delivery is deemed perfected. There is, however, no presumption that the goods arrive from the fact of shipment. See r. Bernheimer, 38 N. Y. Super. Ct. 40. It is because that ordinarily the risk of transit is on the *owner*of the goods that such delivery to a carrier is deemed a delivery to the buyer. Here, however, the title was expressly reserved in plaintiff until the books should be wholly paid for. Marvin Safe Co. v. Emanuel, 21 Abb. N. C. 181. Where delivery to the carrier makes no change of ownership, the owner continues to bear the risk of the transit, especially where no notice of the shipment is sent to the consignee. Here, no notice was given by which defendant could claim the book; or, if it were not forthcoming at the designated place, could cause it to be traced on the way from Northport. In such case, the express company is the agent of the consignor (Dunlop v. Lambert, 6 Cl. *&*Fin, 600; Benj. Sales, § 1040), so that any loss on the way falls on the sender. Braddock Glass Co. v. Irwin, 153 Penn. St. 44.

It would be unreasonable to say that defendant had bound himself to pay for what he never got, where it had been stipulated in advance that he should have no title in the article at the time of its loss. Murray v. Nichols, 11 N. Y. Supp. 134. Where a publisher contracts to make such a delivery to a subscriber at a distant place, some express clause is necessary to shift the risk of carriage. Such a provision is “ Goods delivered to customer, when delivered to transportation Co.” See Price v. Engelke, 68 N. J. Law, 567. In the absence of such stipulation, the risks *86of transit naturally follow the title to the goods at the time; and the publisher must carry out the engagement to deliver at the place appointed.

This contract was clearly entire. Indeed, the completeness of the whole series, as issued, of such a reference work, is essential to its usefulness. Hence, the breach as to this volume is fatal to this suit, and defendant should have judgment on the verdict.

Judgment for defendant.