His opinion is as follows:
If A sells lumber to B and the contract of sale provides that A shall deliver the lumber free on board (F. O. B.) cars at a certain point, the title to the lumber remains vested in A, the seller, until he has delivered the lumber at the point agreed upon to the buyer or his agent the carrier.
If the lumber is damaged while in the possession of the carrier in transit to the point of agreed delivery, the question of the loss is between the seller A and the carrier. If the lumber is damaged after delivery at the point agreed upon, but while in possession of the carrier the question of loss is between the buyer and the carrier.
The question arises what constitutes delivery f. o. b. In the case of shipment of lumber by rail it is customary for the shipper to load the lumber properly on the car. It has been held by some of the courts that it is not necessary for the shipper having completed the loading to give formal notice of delivery to the carrier in order to place the consignment in the possession of the carrier—(but it is safer to notify the carrier of such fact thereby eliminating a possible controversy). If the sale is f. o. b. point of shipment the delivery by the seller to the carrier is delivery to the buyer and from that time the carrier until it has performed its contract of transportation is the agent of the buyer. This principle of law is subject to the exceptions arising under the law of stoppage in transit, as for instance if the buyer becomes insolvent after the shipment has been made—but before arrival at destination.
It has been held that the liability of the carrier begins as soon as the consignment has been placed in its possession, even though the bill of lading has not been issued.
The question also arises when does the liability of carrier as such terminate by delivery to the consignee.
The general rule is that when the carrier has placed the car of lumber on the track which is the usual and customary place for the consignee to unload and consignee has had reasonable opportunity to unload, then its liability as carrier terminates and it is liable only as a warehouseman while the consignment remains on such track, which means that the carrier is required to exercise only the degree of care which an ordinarily prudent person would exercise to protect his property from loss or destruction. In some states the statutes provide, or the courts hold, that the carrier having placed the car in such position for unloading by the consignee, it is then the duty of the carrier to send due notice of that fact to the consignee; and until such notice and reasonable opportunity has been given, the carrier’s liability as such continues. In other states the carriers are not required either by statute or rule of the courts to give such notice of arrival of consignments, it being held to be the duty of the consignee to keep himself informed as to the time of arrival of his freight. This rule is gradually being superseded in most states by the more reasonable rule that it is the duty of the carrier to send due notice to consignee of arrival of freight.
Opinion No. 8.
BUYING AND SELLING AGENT NEEDS NO LICENSE IN NEW YORK CITY.
Very often out of town members who contemplate opening an office in New York City, inquire as to whether it is necessary to obtain a license in order that their agent may legally represent them. The following appears to cover the ground: