This is an action for goods sold and delivered. The goods were sold on thirty days’ credit, and the plaintiff was to ship them at Chicago, freight prepaid. The goods, duly marked with the name of the defendants and their place of business, were delivered on November 10, 1898, to a common carrier in Chicago, and a receipt therefor taken by the plaintiff in its own name. ' This receipt was merely temporary in its character, and recited that it was to be surrendered in exchange for the carrier’s bill of lading “ of the form now in’ use.” This temporary receipt never was given up and no bill of lading ever *377was. sent by the plaintiff to the defendants. The evidence tended to show that the goods arrived in Boston in due time, that the defendants received a notice from the railroad company in Boston announcing that fact, and that afterwards they received a second notice. The defendants never called at the railroad office for the goods, nor did they ever receive them at their place of business.'
The chief question in this case is whether there was such a delivery of these goods as the plaintiff must show in order to maintain an action for goods sold and delivered. It is not enough that the goods have been identified and set apart for the vendee so as to pass the title to him subject to the vendor’s lien for the price, but it is necessary that the possession should have been given to the vendee in performance of the contract, so that he has not only the title but also the possession. This-delivery may be made to an agent of the vendee, and the well established rule is that where such a delivery is made to a common carrier at the express request of the vendee, or where such a request may be implied by the previous dealings between the parties or by a well known custom or usage, it is prima facie a delivery to him. Frank v. Hoey, 128 Mass. 263, and cases cited. Wigton v. Bowley, 130 Mass. 252.
It is evident, however, that there may be a delivery of the goods to a common carrier where the seller intends to retain the control of the goods, and so it has been held that where the receipt or bill of lading is taken in his name, that fact, when not rebutted by evidence to the contrary, is decisive to show his intention to preserve the Jus disponendi, and to prevent the property from passing to the vendee. Ames, J., in delivering the opinion in First National Bank of Cairo v. Crocker, 111 Mass. 163, on page 167. Wait v. Baker, 2 Exch. 1. Benj. Sales, (6th Am. ed.) § 399.
The defendants contend that this principle is applicable to this case. We think not. The order was to “ Ship direct prepaid freight and await billing.”- The goods were duly marked with the name and place of business of the defendants. They were to be delivered to the order of the consignee. The receipt which the plaintiff took from the railroad was merely temporary in its character, and was doubtless taken in that way because the order was to await billing.
*378Under the instructions of the court the jury must have found that the plaintiff complied with the terms of the order and delivered the goods to the common carrier in accordance therewith. That was a sufficient delivery to the defendants, so far as respects the form of this action.
Exceptions overruled.