A. J. Neimeyer Lumber Co. v. Burlington & Missouri River Railroad

Norval, J.,

dissenting.

I do not concur in the judgment just rendered. There is no controversy as to the material facts. Simpson, Perkins & Co. were wbolesale dealers in lumber at Dallas, Texas, from whom C. N. Deitz, without plaintiff’s knowledge, before January 8, 1892, ordered 20 cars of lum-. *344ber to be delivered to himself at Omaha. Simpson, Perkins & Oo. thereupon'sent a letter, inclosing order for the 20 cars of lumber, to the plaintiff, the A. J. Neimeyer Lumber Company, at'Waldo, Arkansas. The letter is as follows:

“Dallas, Texas, Jan. 8, 1892.
“A. J. Neimeyer Lumber Company, Waldo, Arle. — Gentlemen: We received your stock sheet some time since, and herewith send you two orders, which you will find are very nice ones. Please name your figures as low as possible on these orders. Kindly advise us how you are fixed for clear flooring and finished stuff, and we may hand you some orders at an early date. Also inclose us your lowest f. o. b. price list.
“Yours very truly, Simpson, Perkins & Co.”

The orders inclosed in said letter were alike, except as to number of cars and kind of lumber, and read as follows:

“Dallas, Texas, Jan. 8,1892.
“A. J. Neimeyer Lumber Go., Waldo, Arle.: Ship to C. N.

Deitz, Omaha, Neb., via-R. R., care--R. R., rate 22 [Here follow the number of cars and description of lumber required.], as soon as you can. If for any reason you cannot ship promptly, advise. Please always send bill of lading and invoice to us at Dallas.

“Yours truly, Simpson, Perkins & Co.”

On January 9, 1892, plaintiff sent the following reply:

“A. J. Neimeyer Lumber Company,
“Mills, Waldo, Ark.
“St. Louis, Jan. 9, 1892.
“Messrs. Simpson, PerHns & Go., Dallas, Texas — Gentlemen: Your valued orders of January 8th received and filed for prompt shipment, with the exception of' two items. The 2x4 — 20ft. and the 2x12 — 20 we have not now in stock. We have filled orders-as follows:
*345
“Prices f. o. b. Omaha, Nebraska. Also,
“Prices f. o. b. Omaha, Nebraska.
“Also on flooring we beg to name you price, f. o. b., Waldo, Ark., $15.30; on finished lumber S. 2 S., 1x4, and 1st and 2d, $15.30; 1x8-, 10 and 12, 1st and 2d, $16.80; l|x8, 10 and 12, 1st and 2d, $19.80; 1-¿x8, 10 and 12, 1st and 2d, $20.80; 2x6 — 8, 10 and 12, 1st and 2d, $21.80. 1- inch Star Finish, $3 less than 1st and 2d; 1-]-, 11, and 2- inch Star Finish, $4 less than 1st and 2d clear.
“Trusting that these figures will be satisfactory to you, assuring you that our material is well manufactured, and . we feel confident we can please you, we solicit your trade in our line. Awaiting your further commands, and thanking you for the orders, we remain yours truly,
“A. J. Neimeyer Lumber Co.,
“By E. B. Eokhard.”

Plaintiff, in compliance with the contract contained in the foregoing letters, sold to Simpson, Perkins & Co. 17 of the 20 cars of lumber so ordered, and shipped the sanie from Waldo, Arkansas, consigned to C. N. Deitz at Omaha on different dates between January 15, 1892, and January 21, the same year. The ears of lumber were delivered for shipment to the St. Louis & Southwestern Eailway Company at Waldo, Arkansas, by which company they were delivered to a connecting carrier, and by *346the latter delivered to the defendant company to be transported to Omaha, this state, for delivery to the consignee, Deitz. Invoices of the lumber were made by plaintiff and sent to Simpson, Perkins & Co., Dallas, Texas. After the delivery of the cars for shipment, and before they had reached their destination, Simpson, Perkins & Co. failed, without having paid for the lumber. Thereupon plaintiff notified the initial carrier to stop delivery of the cars to Deitz, and the defendant likewise received similar notice after a portion of the lumber had been received by the consignee, but before at least 11 cars had reached their destination. Plaintiff demanded from defendant that the remaining cars of lumber be delivered to it, with which request the company refused to comply, but delivered the same to Deitz. Thereupon this suit was brought for the value of the lumber, less freight. The bills of lading were issued by the initial carrier to plaintiff, which were retained by the latter and were never sent, or delivered, to either the consignee or to Simpson, Perkins & Co. The shipments already mentioned constituted the only transactions between said firm and plain tiff. The latter knew nothing about any deal between Simpson, Perkins & Co. and Deitz, and had no knowledge as to how or why the lumber was to be sent to Deitz, except that the orders so directed the shipping to be made.'

A. J. Neimeyer, president and manager of plaintiff’s company, testified on direct examination concerning the meaning of the words “Prices f. o. b. Omaha,” as used in the correspondence above set out, that “the initials f. o. b. have a well understood meaning among railroad men and shippers. They mean free on board at the point of delivery. If we say f. o. b. Omaha, that means that is the price delivered at Omaha.” The witness on cross-examination further testified:

Q. Now, this f. o. b. means simply the price at the place named, does it not?
A. We agree to deliver the lumber at that price at the point of destination,
*347Q. Do you agree to ship the lumber to the consignee at your own .risk ?
A. Yes, sir.
Q. You assume the risk?
A. We assume the risk. If there is any damage in transit, we look to the railroad company.
Q. That is your understanding of those terms?
A. Yes, sir.
Q. Isn’t it your understanding, Mr. Neimeyer, that f. o. b. simply means the price to thé consignee, or the purchaser at a certain place?
A. No, sir.
Q. ■ It is a form of expression of where the delivery shall be made, is that your understanding?
A. That is our understanding; and the price of course attached to it.
Q. Don’t you know as a matter of fact that in railroad parlance the term f. o. b. has.no reference to the question of delivery, but purely to the question of price?
A. In railroad parlance.
Q. And in business parlance?
A. We do not consider it so.
Q. What does the general public consider it?
A. Men in similar business do not consider it so either.
Q. I ask you the simple question, did you not consider when you delivered to the railroad company at Waldo, you had fully performed your contract with Perkins, Simpson & Co.?
A. As far as delivering of the lumber was concerned.
Q. Whatever the contract was?
A. We had not fulfilled our contract until- we did what we agreed to do.
Q. I want to know — you say you had not — you would not consider you had?
A. No, sir; I would not consider I had.
Q. When would you consider you had fulfilled your contract?
*348A. When the lumber arrived at its destination all satisfactory.
Q. When it arrived at its destination?
A. Yes, sir.
Q. Then that consideration is based upon what; what terms or writing or expression in the contract do you base the construction?
A. On simply the reason that we agreed to deliver it at Omaha.
Q. What expression?
A. Free on board cars at Omaha. .
Q. Then because that letter said f. o. b. at Omaha, 22 cent rate, you interpret it as meaning you had not performed your contract with Simpson, Perkins & Oo. until the goods reached Omaha.
A. That would be our interpretation of it.

John A. Sargent, the assistant general freight agent of the Kansas City, Fort Scott & Memphis Railway Company, testified by deposition, inter alia, that he had been engaged in railroad business about seven years; knew the meaning of the initial letters “f. o. b.” as used in commercial and railroad transactions, and that the expression “f. o. b. at Omaha” means “to be delivered at Omaha free on board cars.” The foregoing testimony of the two witnesses named stands uncontradicted in the record.

The chief question presented in this case is, in whom was the title to the lumber while being transported by the carrier to Omaha, the final place of destination? If the title passed from plaintiff upon the delivery of the lumber to the railroad company for carriage at Waldo, Arkansas, as the defendant asserts, then there can be no recovery in this action. .Ordinarily, in the absence of an agreement, expressed or implied, to the contrary, personal property is delivered at the place where it is when sold. Where, however, a dieffrent place where it is fixed by the contracting parties, that will govern. In this case there is no claim that the delivery of the lumber was to be made at plaintiff’s mills in Waldo, or that the title passed *349there. The correspondence between Simpson, Perkins & Co. and plaintiff, which constitutes the centrad', of sale, discloses that the lumber was sold and purchased for the purpose of being shipped to Omaha, and that plaintiff was to-make delivery elsewhere than at its mills. The lumber was to be selected by plaintiff and placed on the cars for transportation, and the contract price was a cer tain sum per 1,000 feet, varying according t > the kind of lumber, “f. o. .b. Omaha.” The authorities unite in stating that the delivery of goods by a seller to a common carrier for conveyance to the buyer, when the transportation is to be made in that manner; and the contract is silent on the subject, is delivery to the purchaser, and prima facie the title to the properly at once vests in the latter, subject to the exercise of the vendor of the right of stoppage iv transitu, since the carrier is regarded as bailee or agent of the vendee, and not of the vendor. But if the contract requires the seller to make delivery at a distant point, the carrier is his bailee or agent, and usually the title does not pass until the property has been delivered at the point designated by the parties. (Sneathen v. Grubbs, 88 Pa. St. 147; Braddock Glass Co. v. Irwin, 153 Pa. St. 440; Hanauer v. Bartels, 2 Colo. 514, Benjamin, Sales, sec. 1040.)

R. M. Benjamin, in his work on the Principles of Sales, at page 87, states: “If it appear that the seller undertakes to deliver the goods at the place of their destination, assuming the risk of their transmission, the carrier is the bailee of the seller and the property in the goods does not vest in the buyer until they are delivered at such place.” • The author, at page 145, in speaking of the general doctrine that the delivery of goods to a carrier by a vendor for the purpose of transportation to the vendee'is prima facie delivery to the latter, says: “The rule does not obtain when it appears that the seller undertakes to deliver the goods at the place of destination. In such case I he carrier is the agent of the seller.”

In Newmark, Sales, sec. 1GG, the author says: “The *350general rule is that title will not pass until delivery, if it is a part of the contract of sale that the seller shall deliver the property sold at some place specified and receive payment on delivery. * * * And that, if by the terms of the contract the seller engages to deliver the thing sold at a given place, and there be nothing to show that in the meantime the thing sold was to be at the risk of the buyer, the contract is not fulfilled by the seller unless he delivers it accordingly.” (Bloyd v. Pollock, 27 W. Va. 75; Devine v. Edwards, 101 Ill. 138; Suit v. Woodhall, 113 Mass. 391; Weil v. Golden, 141 Mass. 364; 21 Am. & Eng. Ency. Law 528-530.)

McNeal v. Braun, 53 N. J. Law 617, was an action to recover the contract price of a quantity of coal shipped by plaintiff from Philadelphia to the defendant at Burlington, under a contract fixing the price at $4.10 a ton delivered at Burlington. The coal was shipped in a barge selected by the seller, and reaching in the evening the last named place was moved along side of defendant's wharf for the purpose of unloading. During the night the barge sank, and the coal was lost. The court in the opinion say: “Under a contract of this sort, delivery of the coal on board the barge was delivery to the master as the plaintiff’s Bailee or agent, to perform for him the act of delivery in execution of his contract. (1 Benjamin, Sales [Corbin’s ed.] sec. 556.) Meanwhile, and until delivery was consummated in such manner as to be effectual as between vendor and purchaser, the coal was at the plaintiff’s risk. * * * But the plaintiff, instead of being an agent to procure transportation, had himself contracted to deliver the coal, and these instructions ignore the fact that under a contract of that sort the undertaking to deliver is absolute and unqualified, and delivery of the goods is a condition precedent to the right of the vendor to sue for the contract price. If the goods be lost .or destroyed before delivery is consummated the vendor must bear the loss. Under such a contract the carrier selected by the vendor is his agent to perform the *351contract to deliver, and the vessel in which the goods are carried is pro hac vice the vendor’s vessel. For the negligence of the one and the condition of the other, and, indeed, for failure to make the delivery of the coal according to the contract, for any cause not due to the fault of the purchaser, the responsibility is upon the vendor.”

Westman Mercantile Co. v. Park, 31 Pac. Rep. [Colo.] 945, was to recover the contract price of two cars of hay shipped by plaintiff to defendant at Denver. It was held the delivery was complete and the title to the hay passed to the buyer, when the cars containing the hay were left in the general receiving yards of the carrier at the final place of destination.

It is argued that the place of delivery of this lumber was on board the cars at Waldo, and that the title passed when the lumber was put on the cars for shipment. The; soundness of this contention depends upon the construction given to the clause in the contract “'prices f. o. b. Omaha,” as there is no other provision relating to the subject of delivery. The initial letters “f. o. b.” in contracts of sale, when the property is to be transported, mean “free on board” the cars at a designated place, whether that be the initial point of shipment or place of final destination. They imply that the buyer shall be free from all the expenses and risks attending the delivery of the property at the point named in the contract for such purpose. This contract should be interpreted precisely the same as if it read “prices free on board cars at Omaha,” and the plain and obvious meaning of those words is that plaintiff was required to pay all freight and expenses, assume all risk of transportation, and that the title did not pass from the seller until the lumber arrived at Omaha. Had the contract named “prices f. o. b. Waldo,” then delivery to the carrier at Waldo would have been delivery to the purchasers, and title would at once have passed. (Congdon v. Kendall, 53 Neb. 282.) But the contract before us reads “f. o. b.” place of destination, which is materially different from a *352clause which provides for the delivery of property at the initial point of transportation. Had this lumber been lost while in transit, plaintiff could not have recovered the purchase price from the vendees, since the sale was not complete without delivery of the property free on board the cars at Omaha. This is the construction placed on the contract by plaintiff and defendants in the pleadings, as a reference thereto will show. Each party has pleaded in hcec verba the correspondence which constitutes the contract under which the consignments were made. The petition avers that the lumber was sold “to be delivered at Omaha, Nebraska, free of freight on board the cars at Omaha;” and the answer expressly admits the sale of the lumber as alleged in the petition. Each party, therefore, has construed the contract as calling for the delivery of the lumber at Omaha, and not Waldo, and the court is certainly justified in adopting the construction which the parties themselves have admitted to be the proper one. That the delivery was to be made in Omaha is emphasized by the following averment in the answer: “The defendant further answering alleges that before the time mentioned in the petition, and before Simpson, Perkins & Co. had purchased the lumber referred to from the plaintiff they had entered into an agreement with the said O. N. Deitz, of Omaha, to sell and deliver to him at said city, at certain” agreed prices, a large quantity of lumber of the kind described in the petition, and that the said Simpson, Perkins & Co. to carry out the agreement purchased of the plaintiff the lumber aforesaid, and at the same time requested the plaintiff to promptly ship it to G. N. Deitz. That the plaintiff, in compliance with such request, delivered the lumber to the said St. Louis & South Western Railway Company, to be transported by it and other connecting carriers to Omaha and there deliver to C. N. Deitz.” This is an admission that Omaha was the place of delivery .of the lumber. The delivery to a carrier is regarded as delivery to the buyer only when, and as, it is in accord with .the *353terms and intention of the shipment. In the case at bar the carrier was the bailee or agent of plaintiff, and not of Simpson, Perkins & Co., and the title to the lumber did not vest in them until its arrival in Omaha free of expense of transportation to the purchasers. This conclusion is not without abundant support in the authorities.

In Benjamin, Sales [6th ed.] sec. 682, the author says: “In many mercantile contracts it is stipulated that the vendor shall deliver the goods ‘f. o. b.,’ i. e., ‘free on board.’ The meaning of these weirds is that the seller is to put the goods on board at his own expense on account of the person for whom they are shipped, and the goods are at the risk of the buyer from the time' when they are so put on board.” At section 693 it is stated: “If, however, the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risks of the carriage, the carrier is the vendor’s agent.”

In Knapp Electrical Works v. New York Insulated Wire Co., 42 N. E. Rep. [Ill.] 147, it was held that a contract for the consignment of goods “f. o. b.” place of shipment implies that the consignee is to pay the freight to the place of destination.

In Miller v. Seaman, 176 Pa. St. 291, the facts were these: February 21, 1894, one Miller contracted for the sale to the defendants of eleven piles of lumber in the yards of the Dent Lumber Company, at Du Boistown, Pennsylvania, marked “A. G. M.” and numbered and mentioned in the schedule annexed to the contract, “at and for $8.25 per 1,000 shipping count, f. o. b. cars Williamsport, to be loaded, inspected, and measured as ordered by said purchasers, by Mr. Sam Aurand for the sellers.” The contract further stipulated for inspection and measuring all lumber not loaded on cars prior to June 1, 1894, and tke same to be paid for on that date at $8 per 1,000 feet, less two per cent, discount. The expenses of the inspection and measurement of lumber in yard on said date to be borne by the purchasers. Before June 1, a portion of the lumber was destroyed by flood, *354and Miller brought suit to recover the value of the lumber thus lost. A nonsuit was entered, the trial court holding that the title did not pass from Miller, under the contract, until the lumber was measured and inspected, and delivered at his expense f. o. b. cars Williamsport to the purchasers: The judgment was affirmed, the court in the opinion saying: “It is clear that the defendants had no right to take possession of these piles, as piles of lumber. If they had attempted, it, Miller could have proceeded either by replevin or trespass against them. They 'could not have sold the lumber in a lump and delivered it to a purchaser. They could only, take or sell in accordance with their contract. Their title to each shipment vested on its delivery f. o. b. to them at Williamsport. The lumber swept away by the flood had not been ordered by the purchaser; it had not been inspected, measured, or loaded by the seller and delivered at Williamsport to the buyer. * * * The title had left the plaintiff only as orders had been filled and shipped, and as to all that remained in the yard, it had never left him.”

In Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, there was under consideration a contract containing a provision for the sale and purchase of “Flat Top Coke at $5.10 per net ton (2,000"lbs.) f. o. b. cars Sheffield, Ala.,” which was the place of destination of the coke. The court, in discussing the meaning of the letters “f. o. b.” in contracts of sale, observed: “They Import that the purchaser shall be free from all expense which may have attended the shipment and transportation to the point named. Had the provision related to the initial point of the transportation, the buyer would have been entitled to the shipment at that place free from all expense incident to loading the cars — all expense indeed incurred in the premises up to and including the loading of the cars. Then it would have been upon the buyer to pay the freight — the cost of transportation — to the final destination of the consignment. The provision here having relation to the point of final delivery, it can mean noth*355ing else than that the seller is to pay all costs and charges up to that point, and. that the buyer is entitled to receive the consignment free from all such costs and expenses.”

Capehart v. Furman Farm Improvement Co., 103 Ala. 671, was an action by a consignor against a carrier to recover damages for loss and injury sustained in the transportation of certain goods which were purchased by Scott & Ray from plaintiff to be shipped from Atlanta, Georgia, to Guntersville, Alabama, consigned to purchasers. The contract of sale provided the goods were to be delivered “f. o. b. at Guntersville, Ala.” The court, in the opinion, say: “It is admitted that f. o. b. means Tree on board.' Indeed, we judicially know the fact. (Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446.) The effect of the stipulation is that the consignor will place the goods, loaded on the car or vessel wherein transported, at the designated point of destination, free of a.ll expense to the consignee. (Sheffield Furnace Co. v. Hull Coal & Coke, Co., supra.) When, therefore, the plaintiff paid the freight charges and caused the boat to be landed at Guntersville, with the goods safely thereon, properly consigned to Scott & Ray, it completely fulfilled its contract; the carrier ceased to be its agents for the custody and care of the goods, and immediately became the agent of the consignees. The relations of the parties then became precisely the same, in effect, as if the contract of the plaintiff had been delivered f. o. b. at Atlanta, and the loss or injury had occurred en route, before reaching Guntersville. In such case, the carriers would have been regarded as the agents of the consignees, and the delivery to them f. o. b. at Atlanta would have passed the title to the consignee. This contract is not susceptible of any other construction.”

There is no question that, under the contract, plaintiff was required to pay the freight on the lumber from Waldo to Omaha, which fact raises the presumption that the intention was that delivery was to be made by the *356seller, and at its risk, at Omaha, and .that the title did not vest in the vendees until the lumber arrived in that city.

In Murray v. Nichols Mfg. Co., 11 N. Y. Supp. 734, glassware was shipped by plaintiff in Connecticut for delivery to defendant in New York, the seller paying the freight. It was ruled that the risk of transportation was on the latter, and no recovery could be had for the goods broken before their arrival at place of destination.

Devine v. Edwards, 101 Ill. 138, was an action to recover a sum alleged to be due for a quantity of milk shipped by plaintiff to defendant from Dundee, Illinois, to Chicago, under a contract whereby plaintiff was to pay the freight. There was evidence tending to show that some of the milk spilled from the cans while on the cars, and one of the questions was who was to stand this loss. The decision of the court is expressed in the second subdivision of the syllabus as follows: “Where a contract for the sale and delivery of personalty such as milk expressly provides that it is to be shipped by the seller to the place of business of the purchaser, * * and any loss on the way must fall upon the seller.”

In Suit v. Woodhall, 113 Mass. 391, a traveling salesman for plaintiffs, who were wholesale liquor dealers in Louisville, Kentucky, took the order of the defendants at Lawrence, Massachusetts, for a quantity of liquors, at a stipulated- price subject to the order of plaintiffs. It was agreed that there should be deducted from the price all sums which defendants should pay for freight upon the liquors from Louisville to Lawrence. The liquors were delivered to the carrier for transportation as agreed, and it was held that the title remained in the vendors during the course of transportation, and the sale was not complete until the delivery of the liquors at the place of destination in Lawrence. To the same effect, as to completion of sale at place of delivery, is Weil v. Golden, 141 Mass. 364.

The third and fourth paragraphs of the syllabus in *357Julius Winkelmeyer Brewing Ass’n v. Nipp, 50 Pac. Rep. [Kan.] 956, are as follows:

“3. Ordinarily, a delivery of merchandise to the carrier is a delivery to the purchaser, but when the seller pays the freight the carrier is his agent, and the delivery is made at the place of its destination.
“4. Where the freight charges are to be paid in the first instance by the purchaser, but are to be charged to the seller, and deducted from the price of the merchandise, held, that the seller pays the freight.”

It is asserted that Wagner v. Breed, 29 Neb. 720, is decisive of the question against the contention of plaintiff, and that it was therein solemnly adjudicated “the mere fact that a vendor pays the freight is of itself sufficient evidence to overthrow the presumption that where a purchaser orders goods from a distant seller, and he in pursuance of the order delivers the goods to a carrier for shipment to the vendor, such delivery is a delivery to the vendee and that his title at once attaches.” This doctrine was not announced in that case, as an examination of the decision will disclose. The suit was to foreclose a real estate mortgage given for the purchase price of beer sold and shipped by Wagner, a wholesale dealer in liquors at Rock Island, Illinois, to one Breed, the mortgagor, at Hastings, this state. The defense interposed was that the sale was made in Nebraska, and therefore void, inasmuch as Wagner had no license to sell intoxicating liquors here. The beer was shipped to Breed from Rock Island to Hastings in car load lots by a common carrier of his own selection and designation, and the vendee uniformly paid freight on the shipment, which was afterwards credited back to him in his account by plaintiff, for the purpose of reducing the price of the beer to conform to the usual price then obtaining. The court in the opinion say: “These sales of beer -by the plaintiff to the defendant William Breed, upon which the indebtedness sued on arose, were made and concluded at Rock Island, in the state of Illinois,” That case is not an an*358thority for the proposition that the title of this lumber passed from the vendor at the place of shipment, because it was shipped under an agreement requiring the plaintiff herein to pay the freight to Omaha, who selected the carrier, and contracted to deliver the lumber free of expense on board cars at that point. The beer was not shipped under a contract containing any such provisions. In that case the vendee, and not the vendor, designated the carrier and paid the freight, and the court properly held that the sales were made in Illinois, and not in this state.

Of the cases decided by this court the one which more nearly fits the one at bar is Havens v. Grand Island Light & Fuel Co., 41 Neb. 153. That was an action to recover the contract price of a car of coal shipped by plaintiff from Omaha to defendant at Grand Island. One of the defenses was that the quantity of coal sued for was not received at the place of destination. Plaintiff insisted that the title of the coal vested in the fuel company upon the delivery to the carrier at Omaha, and if a less amount of coal was received by purchaser than was delivered to the carrier, the loss must be borne by the defendant. The court held the evidence supported the findings of the jury that the coal was to be delivered at Grand Island, saying: “The general rule doubtless is that the delivery of goods to a carrier consigned to the purchaser is a delivery to the purchaser, and that the title of the goods so delivered to the carrier at once vests in the purchaser; but this rule is by no means universal, and whether applicable in any case, depends upon the facts, circumstance, and the contract between the seller and the purchaser in the case. * * * It is not stated in any of the pleadings in the case at what place this coal was to be delivered, and if the jury found from the evidence that the coal was to be delivered at Grand Island, we think the evidence ample to sustain that finding. By the letter of October 16, written by Havens & Co. to the fuel company, it is stated: We have your favor of the 15th and *359have entered your order for two cars of grate coal at $9.85 per ton f. o. b. at Grand Island;’ * * * and it also appears from the record that Havens & Co. accepted from the fuel company, as part payment of the other car of coal shipped with the one in suit, the freight bills for the coal turned over by the carrier to the fuel company. To adopt the contention of counsel that by the terms of the contract the fuel company was to pay $9.85 per ton for the coal at the place of delivery, and that that place' of delivery was Omaha, would make the coal cost the fuel company in Grand Island about $16 per ton, as the evidence shows that the carrier’s charges amounted to about $6 per ton.”

Tregelles v. Sewell, 7 H. & N. [Eng.] 573, is distinguishable from the case at bar. That was an action to recover damages for the non-delivery of a quantity of bridge rails purchased under a contract whereby the buyer agreed to pay therefor “57. 14s. 6d. per ton, to be delivered at Harburgh, costs, freight, and insurance; payment by net cash in London, less freight, upon handing .bill of lading and policy of insurance.” The seller delivered the rails on boat at London, received the usual bill of lading, making the shipment deliverable at Harburgh, procured, at his own expense, a policy of insurance on the shipment, which, with the bill of lading indorsed in blank, was delivered to the buyer, and the latter then paid the contract price of the iron, less the amount of the freight payable under the bill of lading. It was decided that the seller was not required to make delivery at the final place of destination, and that the title passed on the delivery of the bill of lading and policy of insurance to the vendee. That case is in many respects unlike the one before us. There the vendee was to, and did, pay the purchase money on delivery of the iron to the carrier, and the vendor then paid the freight to the buyer and delivered the bill of lading to him, so that there was nothing left for the seller to do to vest the title in the other party. In the present case the purchase money was not paid, nor *360the freight on the lumber, and the consignor retained possession of the bills of lading. The contract, therefore, had not been fully performed by the plaintiff.

It is urged that inasmuch as the lumber was not consigned to the plaintiff, or its order, and that the bills of lading were taken in the name of the consignee, the inference may be drawn therefrom that it was the intention of plaintiff that the title to the lumber should pass immediately upon the delivery to the carrier at Waldo. This argument is not tenable, because the bills of lading were never surrendered to the consignee or purchaser, but at all times remaining in the possession of plaintiff. Although ordinarily the rule is, when not rebutted by evidence to the contrary, that the title to goods prima facie passes to a vendee upon their delivery by the vendor to a common carrier for transportation to the buyer, yet where a bill of lading is taken in the name of the seller, it is presumptive evidence of his intention to retain control of the property, and that delivery to the carrier is not a delivery to the buyer, but that the carrier is the bailee or agent of the vendor. (Newmark, Sales sec. 147; Benjamin, Sales sec. 399.) On the other hand, if the bill of lading, by direction of vendor, is issued in the name of the consignee and is sent or delivered to him, this is evidence of an intention to transfer the title to the purchaser. “But the fact that the bill of lading is taken in the buyer’s name, if it is not delivered, creates no presumption of an intention to transfer the property unconditionally.” (Newmark, Sales sec. 150; Sheridan v. New Quay Co., 93 Eng. Com. Law 618; Usher, Sales sec. 233; Bank of Rochester v. Jones, 4 N. Y. 497; 2 Am. & Eng. Ency. Law 243, 244; Thomas v. First Nat. Bank, 66 Ill. App. 56; Michigan C. R. Co. v. Phillips, 60 Ill. 190.)

In 2 Am. & Eng. Ency. of Law 242, it is said: “Where goods are consigned without reservation on the part of the consignor, the prima facie legal presumption is that the consignee is the owner. The fact of consignment does not vest an absolute title in the consignee. His *361title is not complete until the bill of lading comes into his hands.”

Lord Denman, in Mitchell v. Ede, 11 Ad. & E. [Eng.] 888, with reference to a bill of lading, says: “As between the owner and shipper of the goods and the captain, it fixes and determines the duty of the latter as to the person, to whom it is (at the time) the pleasure of the former, that the goods shall be delivered. But there is nothing final or irrevocable in its nature. The owner of the goods may change his purpose, at any rate before the delivery of the goods themselves, or of the bill of lading to the party named in it, and may order the delivery to be to some other person, to B instead of to A.”

It is obvious that the true construction of the contract of purchase and sale involved in the present case is that plaintiff’s agreement was not performed until the delivery of the lumber free on board the cars in Omaha, and that the title was not divested until the shipment arrived in that city. Plaintiff, therefore, without regard to the solvency or insolvency of Simpson, Perkins & Co., had the undoubted right to stop the delivery of the lumber at any time during the course of transportation, which right was duly exercised before at least 11 cars had arrived at the place of their final destination. The defendant. however, delivered the lumber to the consignee, Deitz, notwithstanding it had received timely notice not to do so. Such delivery was, therefore, at the risk of the carrier, and it is liable as for conversion. (Gates v. Chicago, B. & Q. R. Co., 42 Neb. 379; Shellenberg v. Fremont, E. & M. V. R. Co., 45 Neb. 487.) The judgment should be reversed and the cause remanded.