There was no error on the trial if this case, either in the instructions which the judge gave to the jury, or in his declining to give those for which the defendant prayed.
It is immaterial whether Winslow was or was not an agent of the plaintiff for the sale of liquors. Upon the evidence set forth in the bill of exceptions, he did not make any contract with the defendant, in the plaintiff’s behalf. He merely obtained, at Great Barrington, the defendant’s orders on the plain tiff for liquors, and sent those orders to the plaintiff in New *364York, who there received and accepted them. The executory contract of sale was therefore made in New York. M’Intyre v. Parks, 3 Met. 207. And it was made by the direct personal acts of the parties who were bound thereby, and not by any agent acting for either of them. And though a delivery of the liquors was necessary to a transfer of the property therein to the defendant, yet it is a well known rule, in the law of sales, that a delivery of goods to a carrier designated by the purchaser is of the same legal effect as a delivery to the purchaser himself So (unless there is an agreement to the contrary) is a delivery by the seller to a common carrier, in the usual course of business, although no carrier is named by the purchaser. Putnam v. Tillotson, 13 Met. 517, 520. Orcutt v. Nelson, 1 Gray, 543. Hilliard on Sales, (2d ed.) 118,119. Atkinson on Contract of Sale, 199-202.
The bill of exceptions does not show by what conveyance the liquors came into the defendant’s possession. It shows only that they were sent to him at Great Barrington, by the plaintiff, and were there received by him. The judge therefore rightly declined to instruct the jury, on this defective evidence, that the contract for the sale of the liquors was made in Massachusetts. The prayer for such instruction wrongly assumed that the contract was made in this state merely because the liquors were “sent” to the defendant within the State. For, as already stated, if they were sent by a carrier designated by him, or by a common carrier, in the usual course of business, though not designated by him, the contract was executed, as well as made, in New York.
This case is not within the decision in Webster v. Munger, 8 Gray, 584, because no evidence was given, at the trial, that the plaintiff knew, or had reasonable cause to believe, that the liquors were to be resold in this state, in violation of law.
Nothing that was decided, when this case was formerly before the court, (2 Allen, 228,) is inconsistent with our present decision. The evidence on the last trial greatly differed from that on the first. Exceptions overruled.