This is an action brought by the Shane Manufacturing Company, Inc. to recover gross income taxes paid during the years 1954, 1955, and 1956, on the ground that the tax was levied on interstate commerce transactions and was therefore illegally collected by the State of Indiana. Burns’ §64-2614a.
The trial court entered a judgment for the Shane Company, from which the State prosecutes this appeal. The evidence shows that the Shane Manufacturing Company, at its plant in Evansville, Indiana, manufactured and sold to Sears, Roebuck & Company, an out of state corporation, certain manufactured products. All shipments were f.o.b. the Shane plant at Evansville.
The evidence further shows that all merchandise was delivered to trucks owned by Sears, Roebuck & Company at the plant in Evansville, pursuant to bills of lading, and distributed by Sears, Roebuck & Company to various retail stores outside the State of Indiana. The goods were packaged in cartons and no inspection of the merchandise was made until the merchandise arrived at the retail stores outside the state.
*281The appellee contends that since the goods were carried immediately outside the state and were not inspected until some time later the transaction is not taxable. On the other hand, the appellant contends that the goods were actually delivered to the purchaser in the State of Indiana, and that the knowledge or the fact that they were to be taken immediately outside the state does not exempt the transaction from the gross income tax. With the contention of the appellant we must agree under the decisions of both the United States Supreme Court and the Supreme Court of this state.
In the case of Dept. of Treasury v. Wood Corp. (1941), 313 U. S. 62, 61 S. Ct. 885, 85 L. Ed. 1188, an Indiana corporation sold to the Baltimore & Ohio Railroad Company railroad ties which were delivered in the State of Indiana. The ties were then carried by the purchasing railroad out of Indiana to be used at various points outside the state. The court, in determining whether or not the sale of ties by the Wood Preserving Corporation was taxable, stated:
“These were local transactions, — sales and deliveries of particular ties by respondent to the Railroad Company in Indiana. The transactions were none the less intrastate activities because the ties thus sold and delivered were forthwith loaded on the railroad cars to go to Ohio for treatment. The contract providing for that treatment called for the treatment of ties to be delivered by the Railroad Company at the Ohio plant, and the ties bought by the Railroad Company in Indiana, as above stated, were transported and delivered by the Railroad Company to that treatment plant. Respondent did not pay the freight for that transportation and the circumstance that the billing was in its name as consignor is not of consequence in the light of the facts showing the completed delivery to the Railroad Company in Indiana.”
*282In the case of Harvester Co. v. Dept. of Treasury (1944), 322 U. S. 340, 64 S. Ct. 1019, 88 L. Ed. 1313, Department of Treasury v. Allied Mills, Inc., 220 Ind. 340, 42 N. E. 2d 34, the International Harvester Company made sales to out-of-state dealers who came into Indiana and took delivery. The court said in that case:
“The Class D sales are sales by an Indiana seller of Indiana goods to an out-of-state buyer who comes to Indiana, takes delivery there and transports the goods to ánother State. The Wood . Preserving Corp. case indicates that it is immaterial to the present issue that the goods are to be transported outside of Indiana immediately on delivery. Moreover, both the agreement to sell and the delivery took place in Indiana. Those events would be adequate to sustain a sales tax in Indiana.”
. The physical and actual delivery of the goods occured at the Shane Manufacturing Company’s plant in Indiana when the products were turned over to Sears’ trucks. The fact that the products were then taken by the purchaser to retail store outlets outside of Indiana creates a situation similar to the one where the Wood Preserving Company delivered ties to the B & 0 in Indiana, which the railroad then carried outside the state.
The mere, fact that Sears, Roebuck & Company did not see fit to inspect the products at the time of the delivery, but rather waited until they reached a retail store,, does not alter the fact that title was transferred at the time of delivery in Evansville. The inspection was merely a condition subsequent. If the merchandise were found faulty, the sales transaction could be rescinded. Uniform Sales Act, Burns’ §58-203, Rule 3; 3 Williston, Sales’ §474 (Revised Ed.).
*283The same situation exists where a non-resident purchaser comes into Indiana and buys from a retail store some product, but waits until he arrives at home to open the package, and thereupon finds that it is defective in some particular. The mere delay in inspection does not change the fact that title vested in the purchaser, subject to a recision because the product might prove faulty, or not be as warranted.
In the case of Ind. Dept. of St. Rev., etc. v. Bendix Aviat. Corp. (1957), 237 Ind. 98, 143 N. E. 2d 91, cert. den. 355 U. S. 607, 78 S. Ct. 539, 2 L. Ed. 2d 524, we said, after a review of the pertinent cases (pp. 113-14 of 237 Ind.):
“The mere knowledge on the part of the seller in Indiana of the intended out-of-state destination of goods sold and delivered in Indiana to a buyer does not convert an intrastate transaction to an interstate transaction, and thereby create a burden interfering with congressional regulation of such commerce.
“Looking at these facts as a whole before us, the receipts resulted from transactions completely performed in Indiana. The performance was essentially local in character. The tax does not discriminate against interstate commerce nor does it interfere with the grant of power to Congress to regulate commerce among the several states.”
We further said: (p. 105 of 237 Ind.)
“Of course, a state may not, under the guise of a tax, place a real burden upon commerce among the several states. [Cases cited] ”
“At the same time it is not the purpose of the Commerce Clause to relieve those engaged in interstate commerce from their just share of the state tax burden. [Cases cited]”
*284The judgment of the trial court is reversed, with directions to enter judgment for the State.
Landis and Achor, JJ., concur; Jackson, J., dissents with opinion, in which Myers, C. J., concurs.