fulfills his obligation when he has put the cargo on board and forwarded to the purchaser a bill of lading and a policy of insurance with a credit note for the freight, as explained by Lord Blackburn in Ireland v. Livingston.' L. R. 5 H. L. 395-406. * * ""

*

Counsel for appellant admit that the judgment of the court below is in accord with the English decisions, followed in this country by the two cases cited, but their contention is that, under the Pennsylvania Sales Act of May 19, 1915 (P. L. 543), the property purchased by the defendant was never delivered to him, and the plaintiff is therefore not entitled to recover. The pertinent parts of that act are as follows: * * *

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"Sec. 19. Unless a different intention appears, the following are the rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon."

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The appellant agreed to pay to the appellee a fixed price for the goods to be shipped to him. The price quoted to him, and which he agreed to pay, included not only the actual value of the fish to the seller, but insurance and freight charges to Philadelphia. If the price had not included insurance, it might be well urged that, under rule 5 of section 19 of our Sales Act, the goods were never delivered to the appellant; but, reading the contract as a whole-as it must be read-with the item for insurance included in it, "a different intention" on the part of the buyer is disclosed, and that he must now be held to have understood that the delivery of the goods to the common carrier was a delivery to him, are clearly demonstrated by the court below in the following from its opinion directing judgment to be entered against him: * * * "No matter what is to be inferred from the reference to freight, the inference from that to insurance must also have weight. The contract must be interpreted as a whole. Both provisions must be explained, interpreted, and given their due force. A provision for the payment of freight by the seller or its inclusion in the price might indicate an intention to deliver at the end of the voyage, or it might be a consideration affecting the price merely, and the cost and uncertainty of the freight charge might be a burden accepted by the seller to expedite the sale. On the other hand, the provision with regard to insurance was either fully intended, and reasonable because of the risk the buyer intended to assume, or, if he did not so intend, it was entirely meaningless and mere surplusage."

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The bill of lading, made out to the appellee or its order, was indorsed immediately by it in blank, and attached to the draft drawn upon the appellant. This merely meant that the appellee intended to retain property in the goods to secure performance by the defendant of his promise to pay for them, and did not, by the express words of the Sales Act, relieve him from the risk that was upon hii. from the time the goods were delivered to the carrier.

Judgment affirmed.

The next case presents a situation where there are a number of conflicting presumptions, each of which is fairly involved by the facts. Many difficulties in the law are of just this kind-the question being which rule of law, out of several rules involved, really controls the issue. In the following case we have: (1) The presumption that title passed on delivery to the carrièr. (2) Evidence to show that this presumption is overcome, and that title was to vest on delivery. (3) Circumstances then show that this second presumption has been overcome. The recognition of the legal effect of the third presumption puts us back exactly where we were at the point of delivery to the carrier. (4) Finally, we find an additional term in the contract, which has the effect of destroying the third presumption, and it is this presumption which the court adopts as determining.

The particular facts of the case are not so important as is the opportunity of noting the complexity inherent in the application of legal principles to the ever varying facts of business.

AGRI MFG. CO. v. ATLANTIC FERTILIZER CO.

(Court of Appeals of Maryland, 1916. 129 Md. 42, 98 Atl. 365, Ann. Cas. 1918D, 396.)

Action by the Agri Manufacturing Company against the Atlantic Fertilizer Company. Judgment for defendant, and plaintiff appeals. URNER, J. A carload of ground tankage, for use in the manufacture of fertilizer, was sold and shipped by the appellant, the Agri Manufacturing Company, to the appellee, the Atlantic Fertilizer Company, and was destroyed by fire before being removed from the car and while awaiting official analysis and weighing at the appellee's works. The question raised by this suit is whether the loss thus occasioned should be borne by the vendor or by the vendee, neither of whom was at fault in regard to the destruction of the property.

The terms of the agreement relating to the sale are set forth in a letter from the appellant to the appellee under date of October 21, 1913, as follows: "Gentlemen: This will serve to confirm sale to you of about four hundred (400) tons of our regular production of ground tankage for approximate equal monthly shipments for months. of January, February, March, and April, 1914, at $2.6712 per unit of ammonia per ton of 2,000 lbs. cif. your works, Curtis Bay, Md. Delivered weights and sampling by Stallings, analysis by Wiley & Co. at seller's expense. Bags to be furnished by buyer as far as possible; if furnished by sellers they are to be returned promptly at buyer's expense. Terms, three-fourths cash upon presentation of pro forma invoice and B/L, balance upon completion of weights and analysis. "These goods are sold upon the representation by sellers that the availability of the nitrogen they contain will show at least 70 per cent. by a permanganate method. In the event buyers should have any goods analyzed for available nitrogen, an official sample to be used, and they should prove to contain less than the 70 per cent. availability above mentioned, the expenses of said analysis shall be paid by sellers,

B.& B.BUS.LAW-65

and buyers shall have the privilege of refusing said goods. In all disputes, the sampling and weighing of Stallings and the analysis of Wiley & Co. to govern."

In the course of the deliveries under this contract, a carload of ground tankage, estimated to contain about 30 tons, was shipped on April 20, 1914, over the line of the Baltimore & Ohio Railroad, from Mt. Claire, Baltimore, to the appellee's factory at Curtis Bay. The car reached the siding of the Atlantic Fertilizer Company on the afternoon of Friday, April 24, and upon an order issued by the superintendent of the company it was placed in position the following day for unloading. Notice was sent by the company to Mr. Stallings and to Wiley & Co. to be at its works on Monday morning, April 27, to weigh and analyze the contents of the car as provided by the agreement. On the intervening Sunday, a fire occurred at the appellee's plant and the flames consumed the carload of fertilizer in question as it stood on the siding adjacent to the factory. The bill of lading for the shipment, in which the Atlantic Fertilizer Company was named as consignee, had been previously delivered to it by the sales manager of the vendor company, together with a pro forma invoice, upon which he received a payment of $661, representing three-fourths of the estimated value of the material on the basis of the ammonia content assumed by the contract of sale. In this suit the vendor seeks to recover from the vendee a balance of $240.86 for the shipment referred to, and the sum of $203.88 on account of a carload which was delivered after the fire and upon which also a three-fourths payment was made on presentation of the bill of lading and pro forma invoice. [Court quotes Section 19, Rules 4 and 5, of the Uniform

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Sales Act.]

In the case before us the seller contracted to deliver 400 tons of fertilizer, of the kind and quality described, at the buyer's works. The term "cif. your works," as used in the agreement, is shown by the testimony to mean that the seller should pay the cost, including freight, incurred in the transportation. The material shipped and destroyed by the fire was appropriated by the seller to the contract, but as it was the duty of the seller, under the terms of the sale, to make delivery, at the buyer's factory, and to pay the freight on the shipment, the rule last quoted precludes any question as to the transfer of the title before the delivery at the designated place was accomplished. It is therefore unnecessary to consider what, in the absence of such a stipulation, is the ordinary effect upon the title of delivering goods to a common carrier and of consigning them to the buyer upon a bill of lading issued in his name, and of the payment of part of the purchase money. Whether the title to the specific carload of fertilizer under inquiry passed to the buyer as soon as it reached the place of destination depends upon the question as to whether the parties to the sale intended the transfer of the title to occur at that point of time or to be deferred to a later period. The intention of the parties is the controlling factor in the determination of such an issue. This is the plain import of the provisions we have reproduced from the Uniform Sales Act, which simply declare in this respect the settled rule of the common law. *

*

Upon the question of intention in regard to the time when the title should pass, we have nothing in the record of any special significance beyond the written terms of the sale. There were no acts of the par

ties reflecting upon this subject, except such as the agreement evidently contemplated. The issue to be decided is therefore one of law and involves the inquiry as to whether there are any conditions of the contract which had the effect of postponing the transfer of the title to the defendant beyond the time of the arrival of the shipment at its plant. It is clear that this effect would not necessarily be produced by the provision for weighing and analysis to ascertain the quantity of the material and the units of ammonia it contained for the purpose of correctly determining the amount of the price.

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* *

The sale was made, however, upon the representation that * the buyer should have "the privilege of refusing said goods." * Consequently, the fact that a particular carload had arrived on the buyer's siding, and had been placed by its order in a position to have the cargo discharged, can have no important bearing upon the question as to the effect upon the title of the provision in reference to testing and rejection. The decisive inquiry is whether the right to refuse the shipment, if a stipulated analysis at the time of delivery demonstrates that it does not conform to the contract, is consistent with the theory that the title has already passed to the purchaser. *

* *

A sale on terms permitting rejection of the goods if they do not pass a prescribed test of quality is somewhat analogous to a sale on trial, in reference to which the Uniform Sales Act provides, in section 19, rule 3 (2): "When goods are delivered to the buyer on approval, or on trial, or on satisfaction, or other similar terms, the property therein passes to the buyer: (a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time." This provision was applied in Rice v. Dinsmore, 124 Md. 276, 92 Atl. 847. In Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 1 L. R. A. 767, 9 Am. St. Rep. 443, where an agreement that a shipment of rock phosphate should be weighed and its quality tested upon arrival at the buyers' works was held not to defer the passing of the title until these acts were performed, it was pointed out that the buyers were given by the contract "no right to reject the rock if it did not come up to the prescribed standard," but were simply allowed in that event a proportionate abatement of the price. The absolute right conferred upon the buyer in this instance to refuse the material delivered if it did not meet the test agreed upon is a conclusive indication that the title was not intended to pass to the buyer until the customary opportunity for making the test was afforded. There is nothing in the evidence tending to show that there was any undue delay on the part of the buyer in arranging for the weighing and analyzing of the contents of the car on the occasion in question, and as the property was destroyed without fault of either party, before the buyer's unqualified right to test, and his conditional right to refuse the shipment, could be exercised, we must hold that the instruction of the trial court placing the loss on the seller was properly granted. * * Judgment affirmed:

SECTION 7.-EFFECT OF THE FORM OF THE BILL OF LADING UPON THE PASSING OF TITLE

The presumption that title passes upon delivery of the goods to the carrier for shipment to the buyer may also be controlled by the form of the bill of lading. There are two kinds of bills of lading, called, respectively, straight bills of lading and negotiable bills of lading. A negotiable bill of lading is one which provides for the delivery of the goods to the order of some person therein designated, or to bearer. A straight bill of lading provides for the delivery of the goods to a named consignee only; words of negotiability being omitted. The various aspects of negotiable documents of title are taken up in Chapter IV; but, in connection with the present section, the Introduction to Chapter IV should be read in further explanation of the distinctions between negotiable and non-negotiable documents of title. It will there appear that a negotiable bill of lading may be used to prevent an act which would normally constitute an act of unconditional appropriation from operating as such. The provisions of the Sales Act bearing on these matters are as follows:

Sales Act, Section 20. (1) Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer, to a carrier or other bailee for the purpose of transmission to the buyer.

(2) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.

(3) Where goods are shipped, and by the bill of lading, the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods as against the buyer.

(4) Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading he acquires no added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the or