Transcriber’s Note:

The cover image was created by the transcriber and is placed in the public domain.

LUMBER
LEGAL OPINIONS

1910

PUBLISHED BY

NATIONAL WHOLESALE LUMBER DEALERS ASSOCIATION

66 BROADWAY, - NEW YORK

OFFICERS 1910–1911

PREFACE

In presenting “Lumber Legal Opinions” to our members and to some of our friends whom we particularly desire to become members of our Association, not only for the good their co-operation will do us, but for their own benefit as well, we desire to say that this compilation is based upon the practical working out of specific cases for our members during the past few years. An examination will, we think, prove the work to be practical and dependable, and generally to express good common sense, and consequently good law. You will, we hope, find it worth your careful study and guidance. In some instances the opinions may be affected by court decisions of the respective States; some of these decisions are specifically referred to, but, as a rule, it has been our aim to secure opinions covering a general situation.

This gives us an opportunity to remind you of the special work which this Association is constantly undertaking for its members and especially that it is worthy of your earnest co-operation and special effort to bring in new members, so that the influence of the organization may be enlarged and made in every way worthy of its name.

Purpose of the Association

The Charter defines the Purpose of the Association to be “to protect the members against unbusinesslike methods in the wholesale and retail trade; to foster such trade and commerce; to reform abuses in such trade or business; to secure freedom from unjust or unlawful exactions; to diffuse accurate information among its members as to the standing of merchants and others by and with whom said trade or business is conducted, and as to other matters to produce uniformity and certainty in the customs and usages of said trade and of those engaged therein; to settle differences between its members, and to promote a more large and friendly intercourse between them.”

Bureau of Information or Credit Department

The Charter and By-Laws of the Association defines the duty of this Bureau to be as follows: “To diffuse accurate information as to the standing of merchants.” There are in the records of this Bureau at the present time 28,000 reports showing the financial condition of an equal number of buyers of lumber. In addition to these financial statements all of these buyers of lumber are rated by the Bureau as to their credit standing as well. It is the unanimous opinion of our members who use this Bureau that the reports are superior to those of any other mercantile agency or other source of information. The Bureau makes a specialty of securing reports only on lumber buyers or users, and it therefore furnishes more complete and reliable reports as to moral and financial standing and business methods than any other agency. A system is also a part of the Bureau whereby important information is sent to each subscriber without the subscriber making special request therefor; in other words, it is the aim of the Bureau to keep its subscribers fully and promptly advised of all important business changes.

Legal and Collection Department

In connection with and as a part of the Bureau of Information there has been established a legal and collection department. This department handles commercial claims, past due accounts, etc., sent to it with promptness and at a minimum cost when compared with the usual methods employed by attorneys and the courts; also has on file much information, including legal opinions and court decisions which are furnished upon request without charge.

Railroad and Transportation Bureau

The Railroad and Transportation Committee through its Bureau is in a position to be of the greatest service to our members, because of the intimate knowledge which our Traffic Manager has of all matters that have to do with our relations with the railroads.

Information and assistance covering a wide range of transportation subjects is being constantly rendered. There are also on file complete lumber tariffs which are kept up to date, and this enables our members to obtain correct information as to rates, routing, etc. Upon request, shipments are traced and prompt deliveries effected. The above services are furnished to our members entirely free of charge.

This Bureau also investigates and collects claims for loss or damage in transit, overcharges in rates, weight, mis-routing, etc. For these services a nominal charge is made based on the actual amount collected. The manager of this Bureau has had years of experience and possesses intimate knowledge of the methods pursued by the various claim departments of the railroads and he is therefore in a position promptly to collect any just claims and frequently has been able to collect claims which our members have been unable to collect themselves. In this connection it may be well to state that all shippers of lumber are entitled to free allowances in weight of five hundred pounds for car stakes used on flat and gondola cars, and this Bureau has secured many refunds on past shipments for members who have not been allowed this free weight. The Bureau is also in a position to compel the railroads not now making the allowances, to do so.

Arbitration

The By-Laws define the duties of the Arbitration Committee to be “to settle differences between our members.” The services of this committee are at the disposal of our members at the actual cost of the expenses of three selected men from among the members of this committee who thoroughly understand the customs of the lumber trade. Any member who avails himself of the services of this committee consequently obtains at an actual cost the services of a jury of experts, with the result that differences are settled fairly, equitably and promptly and without any annoyances and undue expenses.

Legislation Committee

“To reform abuses” and “to secure freedom from unjust or unlawful exactions” is jointly the work of several Committees. For freedom from unjust and burdensome laws and for laws granting us security and reasonable opportunity in the conduct of our business, we look to the Legislation Committee, whose duty it is to scrutinize acts affecting the trade, to oppose those which oppress, and to favor and forward those which assist.

Forestry and Conservation

“To foster such trade and commerce” by perpetuating the raw material which forms the basis of all lumber business, we have our Forestry Committee. The people of this country, with its tremendous sources of timber supply, must be educated to grasp the possibility of a future famine, and needful legislation must be enacted to reduce the problem of reforestation to a practical business proposition before the scarcity of timber shall enhance the values of stumpage to the point of placing trees as a crop in the same class with grain and cotton. The Advisory Forestry Committee links our Association with the country at large in this movement.

Fire and Marine Insurance

The services performed by the members of these committees in past years have most fully justified their existence in the reduction which has been obtained not only for our members, but for all lumbermen both in fire insuring companies as well as in marine insuring companies. These savings amount annually to a sum which is estimated at more than one million dollars in premiums.

Hardwood Inspection

Our Association stands for not only a national but an international set of rules to govern the grading and inspection of hardwood lumber. In all lines of business nothing is more desirable and necessary than uniformity. It is the aim of the Hardwood Inspection Committee to secure the adoption of a reasonable and universal set of rules for the inspection of hardwood lumber.

Management

The Active Management of the Association is in the hands of a board of twenty-one trustees, operating with the Officers and the Executive Committee, through the Secretary and his assistants.

Headquarters

The offices of the Association are at 66 Broadway, New York, centrally located in the business section of the city. Members have the unrestricted privilege of using these offices as the headquarters for receiving mail and telegrams, and for business conferences.

Membership

The four hundred Lumbermen who are members are ready and willing to testify to the advantages to be derived from connection with this Association. Coming from 28 States and Canada, they are qualified by numbers and ability to cope with all questions affecting the manufacture and wholesale distribution of lumber.

Membership in our Association is restricted to legitimate manufacturers of lumber and wholesale dealers in lumber who are in good standing in the trade.

There is no initiation fee. The annual dues are $50.00, with a charge of $50.00 additional to those who desire the benefits of the Bureau of Information. The Collection Department and Transportation Bureau are open to all members without charge other than the very moderate fees scheduled for actual work performed.

These opinions and abstracts were compiled, and arranged under the supervision of the LEGAL DEPARTMENT, BUREAU OF INFORMATION, W. W. Schupner, Department Manager.

INDEX

The cross index is arranged so as to bring out the several points in each opinion or extract. The number at the left, following each opinion or extract, indicates the number of such opinion or extract referred to in the index. The first number after the subject gives the number of the opinion and the second the page number, for example: after “acceptance of checks sent in full settlement” appear 18–21, denoting that the information can be obtained from opinion 18 on page [21]. The other figures after the same subject indicate the other opinions and pages where similar information is given.

First number gives number of opinion; second number gives page number.

• Agent.
  • Authority of salesman to bind principal, 35–[36]
  • Carrier as agent—see common carriers
  • License in New York City, 3–[17]
  • May receive notice for principal, 88–[74]
  • See also certificate to do business.
• Acceptance of
  • checks sent in full settlement, 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[77]
  • delayed shipments avoids claim for delay, 87–[73]
  • draft does not avoid claim for inferior lumber, 92–[76]
  • less than invoice price, 109–[89]
  • offer constitutes valid contract, 72–[65], 96–[79]
  • order through salesman, when it is complete, 96–[78]
  • shipment affected by statute (New Jersey), 81–[69]
  • shipment affected by warranty, 62–[57], 102–[83], 108–[89]
  • shipment unless promptly rejected, 62–[57]
  • shipment validates verbal contract, 65–[59], 86–[72]
  • shipment when it is all or partially used, 34–[36], 90–[75], 102–[83]
  • shipment when it is retained, 6–[17], 31–[48]
  • shipment when it is used may depend on a private custom, 90–[75]
• Acceptance necessary to make valid contract, 72–[65], 96–[79]
• Accord and satisfaction, 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[78]
• Accounting by executor, 23–[26]
• Accounts stated—what does it consist of and what advantage, 101–[82]
• Assignment for creditors voided by bankruptcy, 14–[22]
• Assignment of account by foreign corporation (New York), 63–[58]
• Banking.
  • Certification of check releases maker, 45–[43], 104–[85]
  • Liability of bank for failure to give notice of protest to endorser of note, 99–[81]
  • Protest not always necessary, 52–[50]
• Bankruptcy.
  • Avoids assignment of creditors, 14–[22]
  • Discharge not prevented by giving bad check, 41–[39]
  • Discharge, what will prevent it, 97–[79]
• Bill of Lading.
  • in name of buyer may not release seller, 53–[51]
  • may be required for surrender of shipment, 29–[34]
  • stipulation as to delivery, 11–[20]
  • stipulation as to notice of arrival, 25–[31]
  • to order retains title, 70–[62]
• Breach of contract—see contracts.
• Buyer’s position when lumber offered is not as per contract, 37–[33]
• Cancelling contract when one party guilty of breach, 5–[14], 47–[44], 67–[61], 71–[64]
• Cancelling order by purchaser before accepted by seller’s home office, 96–[79]
• Cancelling order for non-delivery or delay, 43–[41], 84–[71]
• Carload of lumber must all be in accordance with order to fulfill contract, 76–[66]
• Certification of check binds bank and releases maker, 45–[43], 104–[85]
• Certificate for individual to do business in New Jersey or New York, 10–[22]
• Certificate to do Business.
  • Indiana, 106–[86]
  • Kentucky, 106–[87]
  • Maryland, 55–[52]
  • Michigan, 106–[88]
  • Mississippi, 106–[87]
  • New Jersey, 17–[18], 64–[58]
  • New York, 17–[19], 26–[32], 63–[57], 106–[88]
  • Ohio, 106–[87]
  • Pennsylvania, 19–[24]
  • Tennessee, 106–[87]
  • West Virginia, 106–[86]
• Change in original order no excuse for refusing shipment, 1–[13]
• Checks sent in full settlement, etc., 18–[21], 20–[28], 51–[49], 66–[60], 80–[68], 95–[77]
• Common Carriers.
  • Agent for buyer, 33–[77], 53–[51], 70–[62], 88–[74]
  • Agent for seller, 22–[28], 37–[33], 70–[62], 88–[74]
  • Can insist upon acceptance of delayed delivery, 13–[47], 56–[53]
  • Claim for loss or damage, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
  • Liability as warehouseman, 8–[16], 48–[44]
  • Liability for delay, 13–[47]
  • Liability for delivery without surrender of Bill of Lading, 29–[34], 58–[54]
  • May return rejected shipment to consignor, 58–[54]
  • Must deliver shipment as directed, 11–[20], 61–[56]
  • Not always compelled to notify consignor that shipment is rejected by consignee, 61–[56]
  • Not bound to act as intermediary, 58–[54], 61–[56]
  • Notice to, when loading complete, 8–[15]
  • Obligation to send notice of arrival, 8–[16], 25–[31], 28–[33], 48–[44]
  • Should pay value at destination for lumber lost, 59–[55], 73–[65]
  • Stopping shipments in transit, 27–[29], 79–[68], 105–[85]
  • When can charge demurrage, 25–[31]
  • When liability begins and ends, 8–[16], 48–[44]
• Conditional clauses on letter-heads, orders, etc., 24–[27], 110–[48], 50–[46], 82–[70]
• Confirmation of order by home office, 65–[59], 96–[78]
• Confirmation as to time of shipment, 36–[35]
• Contract.
  • Acceptance of offer constitutes valid contract, 72–[65], 96–[79]
  • Against liability for delay in shipping, 24–[26]
  • Breach for failure to make good delivery, 6–[18], 37–[33]
  • Breach for non-delivery, 22–[28], 30–[30], 39–[38], 43–[41], 84–[71]
  • Conditions must all be part of contract, 24–[27], 50–[46], 110–[48], 82–[70]
  • Incomplete when only part of car as per order, 76–[66]
  • May be cancelled when one party guilty of breach, 5–[14], 47–[44], 67–[61], 71–[64]
  • May be void if a mistake in it is obvious, 72–[65]
  • Should be in writing and signed, 65–[59]
  • Valid by acceptance of offer, 72–[65], 96–[79]
• Conveyance in F. O. B. shipment, 42–[40]
• Corporations (foreign) see certificate to do business.
• Credit cannot be demanded when business transferred, 40–[39]
• Credit must be kept good, 30–[30], 39–[38], 47–[44], 67–[60], 71–[64], 79–[68], 91–[75]
• Custom—private and general—as to using a shipment, 90–[74]
• Damage claim against carrier, amount of claim, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
• Damage in transit, who responsible, 8–[15], 54–[51]
• Delay beyond shipper’s control, 50–[46], 84–[71]
• Delay by carrier, liability for, 13–[47]
• Delay in shipment, liability for, 24–[27], 50–[46], 84–[71]
• Delayed delivery, acceptance of, avoids claims for damages, 87–[73]
• Delayed delivery by carrier should be accepted, 13–[47], 56–[53]
• Delayed delivery need not be accepted as fulfilling contract, 84–[71], 87–[73]
• Delivery.
  • Delayed, liability for, 24–[27], 50–[46], 84–[71]
  • In installments, 5–[14], 43–[41], 44–[41], 47–[44], 86–[72], 102–[83]
  • Liability for non-delivery, 22–[28], 30–[30], 39–[38], 43–[41], 49–[45], 91–[75]
  • May be stopped when buyer becomes insolvent, 27–[29], 71–[64], 79–[68]
  • May not affect original purchaser, 38–[35]
  • Delivery must be complete, 31–[48], 76–[66]
  • Delivery must be made by carriers as directed, 11–[20], 61–[56]
  • Not in accordance with contract, 37–[33]
  • On consignee’s side-track, 48–[45]
  • What constitutes, on F. O. B. sales, 8–[15], 37–[33], 42–[40], 53–[50], 70–[62]
• Demand that shipment be returned cannot be enforced, 6–[18]
• Demurrage—see common carriers.
• Discount must be in accordance with terms, 18–[21], 57–[53], 69–[61]
• Draft (accepted) with Bill of Lading does not avoid claim for inferior lumber, 92–[76]
• Draft with Bill of Lading to order, 70–[62]
• Due notice, what does it mean, etc., 83–[71]
• Endorser on note entitled to notice of protest, 99–[81]
• Executor, time for accounting, 23–[26]
• False statement may prevent discharge in bankruptcy, 97–[79]
• Fire delaying shipment, seller’s liability, 50–[46]
• F. O. B.—what constitutes delivery, 8–[15], 37–[33], 42–[40], 31–[48], 53–[50], 70–[62]
• Foreign corporations—see certificates to do business.
• Freight as a consideration for passing title, 9–[23], 53–[50], 54–[51]
• Freight rate advance, 110–[48]
• Fraud, statute of, 65–[59]
• Indefinite quantity, order for, 98–[80], 103–[84]
• Indiana—necessity of foreign corporations filing certificates, 106–[86]
• Insolvents, shipments to, can be stopped, 27–[29], 71–[64], 79–[68]
• Insolvency, cause for declining further shipments, 67–[61], 71–[63], 91–[75]
• Inspection on arrival—privilege of, 62–[57], 92–[76], 102–[83]
• Installment Shipments.
  • Acceptance of one installment validates verbal contract, 86–[72]
  • Contract for delivery, not separable, 5–[14], 93–[77], 102–[83],
    • (see Minnesota case), 107–[88]
  • Cancelling for non-payment, 47–[44], 71–[64]
  • Cancelling order for non-delivery, 43–[41]
  • Delay in shipment, 44–[41]
  • Using one installment may constitute waiver of objection to subsequent installments, 102–[83]
• Invoice terms not effective unless part of contract, 82–[70]
• Judgment in one state ground for suit in another, 60–[55]
• Kentucky, necessity of foreign corporations filing certificate, 106–87
• Loss for non-delivery of lumber, 49–[45]
• Loss for reselling shipment refused on arrival—method of recovery, 1–[13], 5–[14], 78–[67], 94–[77]
• Lost shipment, amount of claim against carrier, 59–[55], 73–[65]
• Maryland, necessity of foreign corporations filing certificate, 55–[52]
• Maximum and minimum amounts in contract of sale, 98–[80], 103–[84]
• Measure of claim against carrier, 13–[47], 46–[42], 56–[53], 59–[54], 73–[65]
• Michigan, necessity of foreign corporations filing certificate, 106–[88]
• Mississippi, necessity of foreign corporations filing certificate, 106–[87]
• Mistake must be obvious to avoid contract, 72–[65]
• New Jersey—certificate for individual dealing under assumed name, 10–[22]
• New Jersey lien law, 21–[32]
• New Jersey—necessity of foreign corporations filing certificate, 17–[18], 64–[58]
• New Jersey statute affects acceptance, 81–[69]
• New York City license for agent, 3–[17]
• New York State certificate for individual dealing under assumed name, 10–[22]
• New York—necessity of foreign corporations filing certificate, 17–[19], 26–[32], 63–[57], 106–[88]
• Non-suit for foreign corporations—see certificates to do business.
• Notice.
  • As to non-delivery, 49–[45]
  • Of arrival by carrier, 8–[16], 25–[31], 28–[33], 48–[44]
  • To agent is notice to principal, 88–[74]
  • To carrier when loading complete, 8–[15]
  • To carrier as to measure of damages, 46–[43]
  • What constitutes reasonable notice, 83–[71]
• Offer accepted constitutes valid contract, 72–[65], 96–[79]
• Offer may be withdrawn until accepted, 96–[79]
• Ohio—necessity of foreign corporations filing certificate, 106–[87]
• Order, confirmation by home office, 65–[59], 96–[78]
• Partial payment validates verbal contract, 65–[59], 86–[72]
• Partial shipments—see installment shipments.
• Pennsylvania—necessity of foreign corporations filing certificate, 19–[24]
• Postscripts on letters or contracts should be signed, 82–[70]
• Principal bound by notice to agent, 88–[74]
• Principal not always bound by salesman’s act, 35–[36]
• Prompt rejection of shipment necessary to avoid acceptance, 62–[57]
• Protest not always necessary, 52–[50]
• Quantity, order for indefinite quantity, 98–[80], 103–[84]
• Railroads—see common carriers.
• Reasonable time for shipment, unless otherwise agreed, 36–[35]
• Reasonable time, what does it mean, 13–[47], 62–[57], 83–[71]
• Refusal of seller to make deliveries, 49–[45]
• Refusing shipment on arrival, 1–[13], 5–[14], 56–[52], 78–[67], 94–[77]
• Refusing to send shipping instructions for lumber ordered, 12–[20]
• Rejection of shipment by notice to railroad, 88–[74]
• Rejected shipment may be returned to consignor by carrier, 58–[54]
• Rejection of shipment, carrier not always compelled to notify consignor, 61–[56]
• Rejection of shipment must be prompt, 62–[57]
• Reselling lumber refused on arrival, 1–[13], 5–[14], 78–[67], 94–[77]
• Retaining lumber shipped constitutes acceptance, 6–[17], 34–[36]
• Sales in installments—see installment shipments.
• Sales on credit, 30–[30], 39–[38], 40–[39], 47–[44], 67–[60], 71–[64], 79–[68], 91–[75]
• Sales of indefinite quantity, 98–[80], 103–[84]
• Salesman’s order, when accepted, 96–[79]
• Salesman’s power to bind principal, 35–[36]
• Selling lumber refused on arrival, 1–[13], 5–[14], 78–[67], 94–[77]
• Shipping instructions for lumber ordered, refusal to send, 12–[20]
• Stated accounts, advantage of, 101–[82]
• Statement of assets, etc., if false, may prevent discharge in bankruptcy, 97–[79]
• Statute of fraud, 65–[59]
• Stopping shipment in transit, 27–[29], 71–[64], 79–[68], 105–[85]
• Storing lumber refused on arrival, 1–[13], 5–[14], 78–[67]
• Strike delaying shipment, seller’s liability, 50–[46]
• Suit can be instituted in one state on judgment obtained in another state, 60–[55]
• Suit by foreign corporation may not be maintained because of failure to file certificate—see certificate to do business.
• Taxes of foreign corporations, 89–[74].
  • See also certificate to do business.
• Tender in fulfillment of contract should be accepted or rejected as a whole, 31–[48]
• Tennessee—necessity of foreign corporations filing certificate, 106–[87]
• Terms of sale must be part of contract, 82–[70].
  • See also conditional clauses on letter-heads, etc.
• Terms of sale should stipulate discount, 18–[21], 57–[53], 69–[61]
• Time of shipment, confirmation of, 36–[35]
• Time of shipment, reasonable unless otherwise agreed upon, 36–[35]
• Title, during transit (carrier’s assumption), 61–[56]
• Title, not affected by freight payment, 9–[23], 53–[50], 54–[51]
• Title, when it passes, 8–[16], 22–[28], 31–[48], 48–[45], 53–[50], 54–[51], 70–[62]
• Title, transfer after purchase holds original buyer, 38–[35]
• Using lumber shipped constitutes acceptance, 34–[36], 90–[75], 102–[83]
• Verbal contract, when valid, 65–[59], 86–[72]
• Warehouseman, carriers’ liability as, 8–[16], 48–[44]
• Warranty may survive acceptance, 62–[57], 102–[83], 108–[89]
• West Virginia—necessity of foreign corporations filing certificate, 106–[86]

CHOICE OF REMEDIES WHEN LUMBER IS REFUSED ON ARRIVAL.

Recently a member took an order from a dealer in Pennsylvania for a car of lumber, and after order had been forwarded to the mill, the buyer requested that a change be made in a certain size included in the order, which our member advised would be made if shipment had not already gone forward from the mill. It developed, however, that shipment had been made and that it was too late to alter any part of the original order. Upon arrival the buyer refused to accept the lumber on the ground that it was not as ordered.

In connection with this case we have the following opinion from an experienced attorney:

Seller has the choice of one of three things, viz.: First, he may store or retain the property for the vendee and sue him for the entire price. Second, he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price of resale. Third, he may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price. Usually, the best course to pursue would be to elect the second remedy, to wit: that of acting as agent for buyer and dispose of the carload of lumber and recover the difference between the contract price and the price of resale. By proceeding in this manner, they may have the use of the price realized from the sale, and they have done all that good faith required to the end that any loss sustained be reduced to a minimum. Of course, the seller on the resale must dispose of the goods in good faith and the best mode calculated to produce their value, whether it be public auction or by broker, or any other mode that can or could be easily adopted.

Opinion No. 1.

A metropolitan dealer writes:

We took an order in writing from a party for 25,000 feet of lumber, 5,000 feet to be delivered the latter part of May, June, July, August, and until all should be taken. Buyer accepted the delivery of the shipments until June, when he refused the shipment, writing us a letter, as trade was dull, to please not ship any more goods on account of order until he notified us. We immediately wrote him that we should insist on his living up to the terms of the contract. We had our truckman make note of the fact that he tendered the goods at their factory and that they refused to receive them. Now, can we sue and collect for these goods, and in the future if they refuse to receive them after tendering them can we sue? If we should instruct our truckman to leave these goods on the sidewalk in front of their place of business, could we sue, claiming this was a proper delivery and collect for same?

Reply: When goods are to be delivered in a number of instalments, as in this case, the buyer’s refusal to accept delivery of any one instalment is a breach of the whole contract; the seller may declare the contract at an end, from that moment, and may sue and recover any damage that the breach of contract may have caused him. The seller has the choice of three remedies. He may keep the goods as his own and sue for the damages; he may hold the goods as agent of the buyer, informing the buyer that they will be delivered to him upon his demand, and sue for the contract price of the goods; or he may sell the goods, for account of the buyer, giving the latter prior notice of the time and place of sale and then hold the buyer for any deficiency. A delivery of the goods upon the sidewalk in front of the buyer’s place of business would be of no advantage to the seller and it might make him liable for that part of the goods if the buyer neglected to take charge of them. The seller cannot sue for the price of each instalment, when it has been tendered and refused. This would be to put the buyer to the expense of defending a number of suits, all arising out of one contract, and this the law does not sanction. Though it calls for delivery at different times, the contract is one and not several, and it may be made the basis of only one action. Suit may be brought as soon as there is a breach of it, it is true, but that suit must be for all the loss arising by reason of the buyer’s unjustifiable act, not simply for the value of the single instalment tendered and refused. When any suit is brought the court will assume that it is for all the loss arising out of the contract and further suits upon the same cause of action will be barred.

Opinion No. 5.

INTERPRETATION OF “F. O. B.” SHIPPING POINT OR DESTINATION.

As there seem to be many opinions on the question of “ownership in transit,” or delivery of lumber F. O. B., and as the association has received numerous inquiries from members covering various phases of the subject, the question has been submitted by the association to Mr. Walter W. Ross, General Counsel to the Car Stake and Equipment Complaint Executive Committee, and an experienced railroad attorney, for opinion. While it must be conceded that such an opinion can cover only a specific case, it will probably be of value to many of our members when the question of ownership in transit arises, and if followed, if adopted as a practical solution, will help to bring about a better understanding between shipper and buyer, always keeping in mind however, that the laws differ in various States.

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:

Question from Baltimore, Md.—I am acting here as a buying and selling agent for a lumber company outside of the State, they supplying me with the money with which to buy the lumber to ship to them on their orders, and I crediting them with the proceeds of the sales of lumber shipped to me to sell for their account, my compensation being a commission on the sales and purchases. Under these conditions I do not pay a license here in Baltimore, but as I expect shortly to move the office to New York, I will thank you to let me know if I would require a license to conduct this business in that city, and if so, where should I apply for same?

Reply: No license is required in New York City in order to carry on such a business as our correspondent describes. One who simply buys and sells here, as agent, need not make a report or pay a fee to any public officer. But if at any time he carries on a general mercantile business, as agent, he must register and pay a fee. The statute is as follows: “Any person now carrying on or conducting a general mercantile or manufacturing business within this State, or hereafter commencing such business at or in a fixed location as agent or manager for another or others, shall—at the commencement of such business, file a sworn statement, verified by such agent and principal or principals, in the county clerk’s office of the county within which said business is carried on, stating the nature of the business and the full name and residence of such principal or principals.” The fee is $1.00, and failure to file the statement is a misdemeanor.

Opinion No. 3.

RETAINING LUMBER SHIPPED CONSTITUTES ACCEPTANCE.

The acceptance of lumber, where the grade is disputed, is the subject of the following correspondence:

Question.—We recently shipped a car of lumber to a dealer, who claims that same is not up to the grade bought. We have asked him to return shipment and guaranteed to replace same with material that was absolutely right. He refuses to do so, and states that he will not return it until he receives lumber to replace the lot he refused to accept. We have sold this car to another party, who asks for delivery. We believe that the original purchaser is making an unjust claim. Can we demand that the lumber be shipped back to us, as the party has refused to accept same and has not paid for it? In case he refuses to return it are we under any obligation to make a second delivery?

Reply: The purchaser in a case of this kind has no right to any material that previously belonged to the seller except under the contract which he has with the seller. When the seller sends the purchaser any lumber and the purchaser keeps it, he keeps it either wrongfully or else as being in compliance with his contract. But the courts will not allow any man to claim, for his own advantage, that he is a wrong-doer when there is a possible and reasonable explanation of his act which makes it lawful. For this reason, among others, a buyer of lumber when there has been no warranty of quality, who retains the lumber sent to him, and refuses to return it, is always held to retain it as being perfectly satisfactory and in compliance with the contract. Any complaint he may make about the delivery is of no importance; it is his act that counts. The courts will insist upon taking the most charitable view of his conduct, whatever he may say, and the most charitable view is that he is doing right, and not wrong, and is keeping the lumber because it is a good delivery under the contract. Our correspondents can demand that the lumber be returned if they choose to do so, but they cannot enforce the demand. If the buyer does return the lumber, in answer to such a demand, he will have a claim against the sellers for another delivery, and a valid one under the contract, or for a breach of the contract in failing to make a good delivery in the first place. If no such demand is made, or if it is made and not complied with, the buyer can be compelled to pay the contract price of the goods on the theory that his holding them is an acceptance under the contract. It is idle for him to say that he does not accept them; keeping them is acceptance. No second delivery need be made unless the first delivery is promptly and properly refused and returned.

Opinion No. 6.

OBTAINING CERTIFICATES PERMITTING FOREIGN CORPORATIONS TO DO BUSINESS AND MAINTAIN AN ACTION IN NEW YORK OR NEW JERSEY.

Almost every State in the Union, and especially the States of New York, New Jersey, Pennsylvania, Massachusetts, Connecticut, etc., require foreign corporations, that is, corporations formed under the laws of other States, to procure a license or certificate to do business within such State, and in default thereof penalties or fines are imposed.

In considering the necessity of such license the first question is to ascertain whether the corporation is transacting its business in a manner which could be interpreted as “doing business” in its legal sense, and this means generally filling all orders obtained in that State when more than two or three incidental orders have been obtained or the maintaining of a place of business in such State. The difficulties in obtaining the certificates are not great but the details are technical and the expense ranges from $10 upwards, depending upon the laws under which the company is incorporated, there being retaliatory laws in some States. The average expense is about $25, and the certificates are generally good for an indefinite period; the only annual requirements being a formal report which does not involve the giving of the details of the corporation’s business and there is no annual taxation unless the corporation has both property and is doing business within such State.

In many cases where valid claims exist in favor of a corporation of another State against a New York debtor, a serious obstacle arises where the foreign corporation has not obtained a certificate to do business in this State, and, therefore, cannot maintain the action. By the statutes as last amended this prohibition covers also any one to whom such foreign corporation has assigned the claim for collection. The provisions of the New York corporation law in this matter are easily complied with. There has to be a sworn copy of the charter of such foreign corporation and the designation of some person on whom process can be served.

The objection to complying with the statute in this respect is the possible liability to taxation after the corporation gets its name on the State Register. All that is taxable in New York State is the amount of capital used in the State, and this would be so small as to be unimportant provided, of course, that the proper returns to the tax departments at Albany and New York are made out each year. This, we understand can be done in ordinary cases, at a charge of $10, for the two reports, one to Albany and one to New York, and this sum is a very small tax to pay for what must be the advantages of selling lumber and maintaining the legal rights connected with such sales in New York State.

Opinion No. 17.

A CARRIER IS BOUND TO DELIVER LUMBER AS DIRECTED.

Question.—My shipper consigns me a car of lumber and marks the bill of lading “via P. R. R. delivery.” If this car arrives by the C. R. R. of N. J., can I be compelled to accept same from them, or does my original contract entitle me to insist on P. R. R. delivery?

Reply: One of the important and imperative duties of a carrier is to deliver the lumber as he is directed to deliver it. A direction to deliver it to a specified connecting carrier or delivery concern cannot be fulfilled by delivering it to another, any more than a direction to deliver it to a certain consignee can be carried out by delivery to another individual. If the carrier makes a wrong delivery, as here described, he is guilty of conversion. The consignee is not bound to accept the lumber from the connecting carrier to whom it has been wrongly delivered. He may sue the original carrier for the value of the lumber as soon as he learns that a different delivery from that directed by the bill of lading has been made.

Opinion No. 11.

IF A BUYER REFUSES TO TAKE LUMBER ORDERED THE SELLER HAS A CHOICE OF REMEDIES.

Question.—Some time in March last we received an order for two cars of 32–inch lath. A few days after the order came to hand we received a letter from our customer requesting us to defer shipment on account of the threatened strike in the coal regions, which request was complied with. The difficulties between the miners and operators have of course been adjusted and operations were resumed some time ago, but our customer has so far failed to furnish shipping directions for the lath, which we had cut especially for his order and piled on our docks ready for shipment at the time his request was received to hold the order. Would we not be justified in loading this stock up and putting cars in transit in accordance with the original order and insisting upon acceptance of same upon arrival?

Reply: This buyer has not, in our opinion, lost his right to select the route by which the goods shall be shipped to him. There is no question that his delay in giving such instructions has been unusually great, but the sellers on their part have given no indication of an objection to such delay. It is clearly their right now to demand that he send shipping instructions immediately and to inform him that they will send the goods by a route of their own selection if he does not name a route by return mail; then, if the buyer does not reply, or if he refuses to issue shipping instructions, or undertakes to repudiate the contract, the sellers will have a choice of three remedies: They may ship the goods to him by any suitable carrier and compel him to pay for them; they may inform him that the goods are held subject to his order, to be shipped in whatever manner and at whatever time he may select, and then compel him to pay for them, or they may name a time and place at which the goods will be sold at auction for his account, giving him sufficient opportunity to be present at the sale, and may then sell them at such time and place, holding him liable for the necessary expenses of advertisement and sale and for any amount, by which the selling price may be less than the contract price.

Opinion No. 12.

UNDER CERTAIN CONDITIONS THE ACCEPTANCE OF PART OF A DEBT DOES NOT RELEASE THE REMAINDER.

Question.—One of our customers recently sent us a check for less than the amount of his bill, saying in his letter that he was remitting the full amount due us. If he had taken advantage of the regular discount on his last purchase (which he did not do) the amount now due us would have been within a few dollars of the size of the check, but even then the check would not represent the exact amount due to us. He does not say in so many words that he is claiming a discount, just sends the check and writes, “enclosed please find amount of my bill to date.” Something of this kind happens rather frequently, and we would like you to advise us whether we must forego using that check until we can write and straighten out the matter with him. More is due to us than he has paid us, and it seems a hardship that we should be kept out of even this part of our claim during the week or month which it may take to have a full understanding with our customer.

Reply: The creditor, in a case of this kind, is justified in cashing the check and still demanding the amount yet due; this amount he can recover by suit if it is not paid voluntarily. The buyer, it seems, was not entitled to a discount, and he has not made a specific claim to any. Being indebted to a certain amount he simply sends a check for part of that amount. He does not say that he claims a discount. If this check for less than the full amount due had been accompanied by a demand that it be either accepted as payment in full, or else returned, a different question might have arisen; but even then the check might safely have been cashed under the facts of this case. This case is simply that of a man who owes $100 and who sends his creditor a smaller amount. The proper course for the creditor is to accept what is sent as a payment upon account and still maintain his claim for what is yet due.

Opinion No. 18.

BANKRUPTCY AVOIDS AN ASSIGNMENT FOR CREDITORS.

Question.—We made a sale to a firm who became embarrassed and offered a compromise to their creditors. We accepted the settlement offered, 25 per cent. cash and 25 per cent. by note at one year. The note given us was not paid and after some delay the concern now goes into bankruptcy. Please inform us whether our claim in the bankruptcy proceedings would be the note only or the full amount due under the original sale?

Reply: The compromise in this case, in so far as it has not been carried out, will probably be set aside and all the bankrupt’s estate be held liable to his creditors under the bankruptcy proceedings. It has been held that “an adjudication of bankruptcy at the instance of the bankrupt’s creditors on the ground of a general assignment, avoids such assignment and subjects the property assigned to the jurisdiction of the bankruptcy court to be administered under the Bankruptcy Act which the creditors have invoked.”

Opinion No 14.

AN INDIVIDUAL MAY TRANSACT BUSINESS UNDER A CORPORATE TITLE IN NEW JERSEY.

Frequently the question arises regarding a person’s legal right to start business under a corporate title; for instance, as “Can John Smith conduct business as the Pine Lumber Company,” etc.

Question from New Jersey.—A person wishes to start a lumber business in New Jersey. Can he adopt a style such as “The Crescent Lumber Company” without being incorporated, the manager being the sole proprietor? Is there anything necessary to be done in such a case beyond hanging out his sign at his place of business?

Reply: In New York no person is now allowed to establish a business under any name, corporate or individual, except his own name, until he has first placed on record in the county clerk’s office, in the county in which the business is to be carried on, a statement of the facts. So far as we can find, however, there is no similar statute in New Jersey. It is a comparatively recent law in this State and there are not many other States that have adopted it. The public cannot be misled to its detriment by such a method of doing business as our correspondent proposes, and there is no common law rule against it. If any creditor supposes that the business is being carried on by a corporation he will not be harmed by the mistake, because the liability of an individual owner, or of a firm, is greater than that of the stockholders of a corporation. A creditor who learns that his business belongs to an individual, instead of a corporation, will be benefited by the knowledge, not damaged. If there should be a statute just enacted requiring registration, the county clerk will know of it.

Opinion No. 10.

WHETHER FREIGHT IS PREPAID OR ALLOWED DOES NOT AFFECT TITLE TO LUMBER.

Question.—A dealer in Buffalo sells a car of lumber to a dealer in Baltimore with the understanding that freight is to be allowed from Buffalo to Baltimore. Please state whether there is any distinction as to the ownership of the lumber in transit, whether the Buffalo dealer prepays the freight in Buffalo or allows the Baltimore dealer to deduct the amount of freight in settlement. If the freight is prepaid in Buffalo at the time of shipment, and the lumber be lost in transit prior to delivery, is the ownership of the lumber vested with the Buffalo or the Baltimore dealer?

Reply: If lumber is sold with an understanding that the seller is to pay the freight, it makes no difference at all, as to ownership during transit, whether freight is prepaid and included in the price, or whether it is deducted from the price and left for the buyer to pay. A seller is not bound to carry the lumber to its destination and deliver it there unless he has expressly agreed to do so. This is true whether the seller pays the freight or not; in either case a valid delivery, transferring risk and title, may be made, if the seller so chooses, at the beginning of the transportation unless the seller has agreed to deliver the goods elsewhere.

Opinion No. 9.

OBTAINING CERTIFICATES PERMITTING FOREIGN CORPORATIONS TO DO BUSINESS IN PENNSYLVANIA.

A recent attorney’s opinion contained some valuable information regarding the filing of certificates in New York State, permitting foreign corporations to transact business in that State and maintain an action. We have been asked for information regarding the requirements of the Commonwealth of Pennsylvania in this matter and our attorney at Philadelphia, William S. Furst, Stephen Girard Building, has forwarded the following opinion.

Herewith follows an opinion embodying the essential points in re foreign corporations doing business in the State of Pennsylvania.

The Act of Assembly approved April 22, 1874, provides that no foreign corporation (this includes corporations created by other States) shall do any business in this Commonwealth until such corporation shall have established an office and appointed an agent for the transaction of its business therein, and it shall not be lawful for any such corporation to do any business in this Commonwealth until it shall have filed in the office of the Secretary of the Commonwealth a statement under seal of such corporation, and signed by the President or Secretary thereof, showing the title and object of said corporation and the name of its authorized agent, with a penalty attached thereto for violation, that a person shall be guilty of a misdemeanor, etc.

The words “doing business” do not include a sale in a foreign State, although the goods are delivered in this State, or taking orders, or making sales by salesmen through agents going into Pennsylvania from another for that purpose.

In short, a foreign corporation engaged in strictly interstate commerce, may advertise its goods, send agents to solicit orders, take orders, make contracts of sale respecting the same, and ship them to customers in Pennsylvania, without violating the act, and may sue to recover the price of any merchandise without filing the statement required by the act, although the foreign corporation in question has no office or place of business in Pennsylvania and no part of its capital invested here.

A foreign corporation, which has not complied with the Act above stated, but has an office or place of business in Pennsylvania, or any of its capital invested within the State, cannot enforce contract rights in the courts of Pennsylvania.

It has been recently decided by the Supreme Court of the State of Pennsylvania (the court of last resort) that a foreign corporation which invests most of its capital in the State of Pennsylvania for a period of six months while constructing a railway, employs large numbers of men, but does not file a statement in the office of the Secretary of the Commonwealth, as required by the provisions of the Act until two months after completion of the work, cannot recover for labor and materials furnished in doing such work.

With respect to the taxes imposed upon foreign corporations doing business in the State of Pennsylvania, the Act of May 8th, 1901, provides that all foreign corporations shall pay to the State Treasurer for the use of the Commonwealth a bonus of one-third of one per centum upon the amount of their capital actually employed or to be employed wholly within the State, and a like bonus upon each subsequent increase of capital so employed. This is not an annual tax. It has been defined to be the price paid the Commonwealth for the privilege conferred on such corporation by its charter. It is therefore in no sense a tax, and the payment thereof does not relieve any corporation from any tax to which it is otherwise subject.

Respecting the taxation of foreign corporations, they are taxable like domestic corporations on so much of their capital stock as is invested within the Commonwealth under the provisions of the Act of Assembly approved June 8th, 1898. The tax is imposed annually at the rate of five mills upon each dollar of the actual value of the whole capital stock of all kinds invested or represented by capital invested within the State.

The tax is settled by the accounting officers upon the basis of a report required to be made by all companies subject to the tax, and particularly upon the appraisement of the value of the stock contained in such report. The report is filed between the first and fifteenth of November in each year.

Foreign corporations are also obliged to file a bonus report annually, from which should appear whether there has been any increase in the amount of the capital actually invested within the State, so that the proper bonus charges may be made upon any such increase as above stated.

Opinion No. 19.

PAYMENT OF CLAIMS BY AN EXECUTOR—TIME FOR FINAL ACCOUNTING.

Occasionally the question arises as to what length of time an executor has to close an estate, and the following, particularly the second section, may be helpful:

Question—Can an executor pay a bill of $10 or less, or what is the largest amount he can pay, without having the claim verified before a notary, according to law?

2.—Within what time do the laws require that an executor’s accounts shall be made up and ready for final settlement?

Reply: 1. The law makes no distinction as to the amount of the claim against the estate for which an executor should require vouchers and an affidavit. The statutory provision is as follows: “The executor or administrator may require satisfactory vouchers in support of any claim presented, and the affidavit of the claimant that the claim is justly due, that no payments have been made thereon, and that there are no offsets against the same to the knowledge of the claimant,” see Code of Civil Procedure, Section 2718. If an executor should pay a claim of any considerable size, without this precaution, and the claim should afterwards turn out to be unjust, he could be, or probably would be, required to repay the amount to the estate.

2. The laws of this State do not fix any definite time as the limit within which an executor must make his final accounting. Whenever a year has expired since the grant of his letters, the surrogate may compel the executor to make an accounting of all that has been done up to that time. If the estate is then in a condition to be definitely settled this may be done. If there has been any remissness on the part of the executor this may properly be dealt with by the surrogate. If the executor has used due diligence, and still is not ready to make a final accounting, he may have further time, always, of course, under the supervision of the court.

Opinion No. 23.

A SELLER MAY CONTRACT AGAINST LIABILITY FOR DELAY IN SHIPPING.

Question—A company in Boston sells to A in New York 800,000 feet of lumber and on the sales slip are the words, “for delivery, one cargo in June, and one in July.” The lumber was shipped in four cargoes, about 200,000 feet in each. The first two were shipped in July; the third cargo on the 18th of August, and the fourth on the 21st of August. The first two cargoes were accepted at the contract price, $27, but the customer refuses the third and fourth cargoes, claiming that we were late on the deliveries. It is a well known fact that all through this year vessels have been very hard to obtain. Has the New York dealer a right to refuse to accept the third and fourth cargoes at the contract price? The price has dropped from the spring to the present time from $27 to say $24. The customer claims the last two cargoes at the going market price prevailing at the time they arrived. Inasmuch as the cargoes cannot be sold over again, except at a less price than the New York customer offered, we were obliged to let him unload the last two cargoes. We claim that the customer has no right to deduct anything, owing to the lateness of delivery, because our orders read, “subject to delays caused by fires, strikes or other causes beyond our control.”

Reply: We suppose the clause quoted by our correspondent, “subject to delays,” etc., is incorporated in the contract or is so prominently printed on the order blank that the buyer cannot fail to understand that the sale is made subject to it. If that is true, and if it is also true that the delay in this case actually arose from a cause beyond the control of the sellers, then the buyer’s position was not tenable at the beginning. It is possible, however, that the buyer can maintain his position now by reason of the acquiescence of the sellers. The buyer had a right to ask that a deduction in the price be made by reason of the delay. If the sellers had refused this request and demanded expressly that the cargo be accepted at the contract price, or not accepted at all, they could have enforced their demand. It does not appear very clearly what answer the sellers made to the buyer’s request for a lower price. Our correspondent says: “Inasmuch as the cargoes cannot be sold over again, except at a less price than the New York customer offered, we were obliged to let him unload the last two cargoes.” There was plainly a dispute as to whether the delay was one which was excusable under the terms of the contract, and, if the act of the sellers, or their answer to the request of the buyer for a lower price, can be construed into an acquiescence in that request, the sellers are now bound by such acquiescence. If the sellers have always insisted that the contract price must be paid, that the goods must be accepted in strict accordance with the contract, or rejected, then they are in position to collect the full contract price for all the lumber.

Opinion No. 24.

WHEN LUMBER IS SOLD FOR DELIVERY THERE IS A BREACH OF CONTRACT IF NOT DELIVERED.

Question from Buffalo, N. Y.—A sells B a carload of lumber at a given price delivered, Boston rate of freight for shipment from the West. B gives directions which are accepted by A for shipment of car to a point taking a Boston rate of freight. The lumber is shipped as per contract, and the consignee pays a sight draft with bill of lading attached according to terms. While in transit the lumber is destroyed. Is the shipper not responsible to the consignee for the lumber, as it was not delivered, as the contract called for; and after the lumber is destroyed does the consignee have an option of insisting on having the shipment replaced or canceling the order?

Reply: Our correspondent calls attention to the fact that the contract in this case called for a delivery of the lumber at the end of transportation. This being so, the seller was bound to carry and deliver the lumber, as well as to furnish it. The carrier was an agent of the seller and if the lumber is not delivered the seller is to look to the carrier for damages, while the buyer looks to the seller. What the seller undertook to do in this case was to supply the lumber, to carry it, and then to deliver it. If he fails in either point he is guilty of a breach of contract. He has failed to deliver the lumber; the buyer may regard this as a breach of contract, which it is, and sue for such damages as may have come upon him as a result of the breach. The buyer cannot compel the seller to replace this lumber with other; but if the seller would rather do that than pay damages, and if the buyer is willing to have it done, then, of course, it may be done.

Opinion No. 22.

A LIQUIDATED DEMAND CANNOT BE SETTLED EXCEPT BY PAYMENT OF THE WHOLE AMOUNT.

Question—An individual in Providence, R. I., who was indebted to me, forwarded a check for less than the amount of his entire indebtedness. He stated on the face of it “settlement in full.” This in nowise discharged his obligation to me and I wrote him that I would credit his check on account and requested a remittance of the balance. He takes the position that under the Rhode Island law he has discharged his indebtedness. Please advise what rights I hold in the premises.

Reply: We do not find any statute or decision in Rhode Island to the effect that a payment of this kind constitutes payment in full. All the reported decisions by the courts of that State we have been able to find lay down practically the same rules upon the subject that are enforced by the courts of New York. This payment was made in New York, and the laws of this State govern it in any event. The law upon the subject here (and, so far as we can learn, in Rhode Island, too), is briefly this: If there is no doubt, and no dispute, as to the amount due, then payment of less than that amount will not discharge the debt, even though the creditor agree to accept it as a discharge, if there is no release under seal and no new consideration given. If the debt is unliquidated, if there is a doubt or dispute as to the amount of it, then the debtor’s offer of so much as payment in full constitutes his estimate of the amount really due. The creditor cannot accept the money without accepting the estimate. The debtor has a right to go into court to have the dispute settled, and if the creditor is unwilling to accept the condition under which the money is sent he is bound to return the remittance and allow the whole matter to be determined in some authoritative way. For decisions to the effect that part payment of a debt that is liquidated and certain is not payment in full, even when the creditor accepts the money and uses it, see 23 N. Y., 684; 108 N. Y., 470; 1 R. I., 496; and 8 R. I., 381.

Opinion No. 20.

PRIVILEGE OF STOPPING LUMBER IN TRANSIT WHEN BUYERS BECOME INSOLVENT.

Question—When lumber has been sold and shipped, and the seller afterwards directs the carrier not to deliver it to the buyer but to return it to him, is the carrier under any obligation to return it, or must he go ahead and deliver it to the buyer, or may he exercise his own will in matter? What are the legal rights of all parties in such a case?

Reply: If one who has sold lumber on credit learns, after it has been delivered to the carrier, that the buyer is insolvent it is his right to demand that the lumber be not delivered to the buyer, but be returned to him. This is known as the right of stoppage in transit, and it is founded upon the theory that one who buys on credit is bound by an implied contract to keep his credit good until the date of payment arrives. In order that the seller may be entitled to exercise this right the buyer must be actually insolvent, that is, unable to meet his just obligations as they fall due; the lumber must be still in the hands of the carrier, and not yet delivered into the actual or constructive possession of the buyer. If the lumber is represented by a bill of lading making it deliverable to the buyer or his order that must be still under the buyer’s control; if he has transferred it to a third person, who has taken it for value and in good faith, the seller’s right of stoppage is gone. If a seller who has a right to stop the lumber attempts to exercise the right by directing the carrier not to deliver it the carrier is bound to obey the direction. The carrier, however, acts at his peril in any case. If he obeys the instruction and refuses to deliver the lumber to the buyer, and the buyer is solvent, he may bring an action of trover against the carrier immediately. On the other hand, if the carrier disobeys the instruction, and delivers up the lumber, he makes himself liable to the seller, at least to the extent of the buyer’s indebtedness for the lumber, if it is a case in which the seller is justified in exercising his right of stoppage in transit. Because of these difficulties of his situation, the carrier is entitled to a reasonable time in which to investigate the financial condition of the buyer; but if he finally delivers the lumber to the buyer in any case in which the seller had a right to countermand the order for their delivery, and had done so, the carrier must answer for it.

Opinion No. 27.

SALES FOR FUTURE DELIVERY.

Frequently the question of credit arises after a contract for future delivery has been made, and the following may be helpful:

Question—Will you kindly give us your opinion in the following matter: A makes a sale to B of a certain quantity of lumber for future delivery, payments to be made on a credit of sixty days’ time. Before the delivery of lumber begins, A has reason to believe that the responsibility of B is not satisfactory to him and refuses to ship the lumber except for cash with discount for the difference in time. What redress has B in this matter, if he is not in a position to pay cash?

Reply: The refusal of A to ship the lumber to B under these circumstances constitutes a breach of contract, for B has an action against A for damages. Something more than dissatisfaction with B’s financial responsibility is necessary to furnish A with a valid excuse for his refusal to ship except for cash.

Opinion No. 30.

IN MOST STATES A CONSIGNEE MUST BE NOTIFIED OF THE ARRIVAL OF HIS LUMBER.

Question—Is a railroad company obliged to notify the consignee of the arrival of lumber when it is billed and the bill of lading reads: “Order of shipper, notify consignee,” and if the carriers fail to notify the consignee, have they the right to charge demurrage or storage for the lumber so held? Would it make any difference if the lumber were billed direct to the consignee and were not an “Order notify shipment?” Have the courts made any rulings of this matter, and where can we find them?

Reply: A railroad company is, of course, bound to comply with the undertaking set forth in its own bill of lading. If it accepts goods to be carried and delivered under a bill which expressly directs it to “notify the consignee” there is no ground upon which it can escape its obligation actually to notify the consignee except the impossibility of finding him by the ordinary means. If the consignee can readily be found the carrier has not fulfilled the task which it has expressly and in definite terms undertaken to fulfill until it has found him and notified him. It has no right to charge demurrage or storage until such notification has been duly given. If the consignee cannot be found by the exercise of reasonable diligence then the attempt to find him will serve the carrier as well as an actual notification. If the bill of lading does not, in express terms, direct the carrier to notify the consignee this duty still rests upon the carrier by common law as it is interpreted in this State. In some States (Massachusetts, for example) the carrier is not bound to notify the consignee of the arrival of his goods unless the contract of carriage expressly so directs. But in New York the courts hold that this is one of the carrier’s duties, as carrier, without any special stipulation regarding it. This is the rule, as the courts of New York have announced it. “The rules as to the delivery of goods at their place of destination by a carrier that prevail in this State are as follows: If the consignee be present upon the arrival of the goods, he must take them without unreasonable delay. If he be not present, but live at or in the vicinity of the place of delivery, the carrier must notify him of the arrival of the goods, and then he has a reasonable time to remove them. If he be absent, unknown, or cannot be found, then the carrier can place the goods in its freight house, and if the consignee does not call for them in a reasonable time, its liability as a common carrier ceases.”

Opinion No. 25.

OBTAINING CERTIFICATES PERMITTING FOREIGN CORPORATIONS TO DO BUSINESS IN NEW YORK.

A previous opinion contained some information regarding foreign corporations obtaining certificates to do business in New York. The following additional information, from our attorney in New York, Mr. Eustace Conway, 15 William Street, regarding amendments effective November 1st, will be interesting:

There went into effect on November 1st, 1906, various important amendments to the corporation Tax Law. The annual franchise tax is placed on a different basis from what it has been heretofore for foreign corporations, and the license tax which foreign corporations have to pay for doing business in this State is also changed as to its method of determination. Under the new law the measure of amount of capital stock employed in this State (on which the tax of ⅛ of 1 per cent. is to be paid for this corporation license to do business here) is to be such a proportion of the issued capital stock as the gross assets employed in any business within this State bear to the gross assets wherever employed in business. As no action shall be maintained in any of the courts of this State by such foreign corporation without obtaining a receipt for this license fee, it is important to foreign corporations expecting to do business here to comply with the statute and take out the certificate. This tax, of course, is only to be paid once for the license, unless later an increased amount of capital stock is employed in the State, but this is not likely to occur. The annual franchise tax is, of course, a different tax, but it is based on the same proportion, except that the amount of dividends is also to be considered.

Opinion No. 26.

THE NEW JERSEY LIEN LAW PROTECTS MATERIAL MEN.

Question—Please state whether or not, under the laws of the State of New Jersey, a seller of building materials comes in under the mechanics’ lien law the same as the man selling his labor.

Reply: Persons furnishing materials for the erection of a building are called “material men” in the Mechanics’ Lien Law of New Jersey, and they have a lien which is protected like that of a laborer. The first section of the law provides that “every building hereafter erected or built within this State shall be liable for the payment of any debt contracted and owing to any person for labor performed or materials furnished for the erection and construction thereof, which debt shall be a lien on such building, and on the land whereon it stands.” It is further provided, in a later section, that “whenever any master-workman or contractor shall, upon demand, refuse to pay any person who may have furnished materials used in the erection of any such house or other building—it shall be the duty of such—material man to give notice in writing,” etc. As a result of this notice his lien attaches and his claim is protected.

Opinion No. 21.

OBLIGATION OF CARRIERS AS TO NOTICE OF ARRIVAL TO CONSIGNEE.

Question—Is a railroad company, which has accepted lumber for transportation to a certain point, legally obligated to notify the consignee at the respective point of the arrival of lumber?

Reply: The law relating to the obligation of a railroad company to notify the consignee of the arrival of the lumber at the point of destination is not uniform in all the States. The rule adopted in New York and in most of the States is that the carrier must give notice of arrival to the consignee, and that until notice is given, or a reasonable effort to give notice is made, the carrier’s liability as carrier continues in force.

Opinion No. 28.

BUYERS’ POSITION WHERE, ON ARRIVAL, LUMBER IS NOT IN ACCORDANCE WITH CONTRACT.

Question—A has sold to B a carload of lumber to be delivered on or before November 24, payment cash promptly after arrival and examination. The lumber arrives on the 24th, and A gives on that day to B an examination order for the lumber, which examination order B accepts. B uses proper diligence in trying to examine, but, owing to congestion of cars at the depot the lumber is not unloaded for several days, and he can only examine it on the 28th. He finds it to be of a quality inferior to the grade contracted for and rejects it, and his rejection is sustained by arbitration. B claims the right to go into the market on the 28th, buy a carload of lumber of the grade contracted for and demand from A the difference between the contract price and the price paid by him on the 28th. A maintains that he can only be held responsible for the difference between the contract price and the ruling market value on November 24, the last date stipulated in the contract. Who is right?

Reply: This lumber was sold for delivery at the buyer’s end of the route, the purchase price was to be paid only after arrival and examination. The carrier was an agent of the seller, and he did not give the buyer an opportunity to make examination until November 28. No valid delivery was made, or could have been made, before November 28, inasmuch as an examination by the buyer was to precede such delivery. When delivery was tendered on November 28 the lumber was found to be such as the buyer was at liberty to reject. He was, accordingly, authorized to go into the market on that day and buy at the price then prevailing in order to place himself in as good a position as he would have been in if the seller had done his duty and had not been guilty of a breach of contract. The buyer has a right to demand that the seller shall place him in this position.

Opinion No. 37.

LIABILITY OF TRANSPORTATION COMPANY IN DELIVERING WITHOUT SURRENDER OF BILL OF LADING.

Question—Can a transportation company be held responsible for delivering a shipment of lumber to a consignee without surrender on the part of the consignee of signed bill of lading, originally issued when shipment was made?

Reply: Until lumber shipped has been completely delivered to the person entitled to receive it, the bill of lading represents the lumber, but no longer. The transfer of a bill of lading passes the title of the transferor to the transferee. If, therefore, a transportation company delivers the shipment to consignee without a surrender of the bill of lading it is liable to a person who has obtained a valid title to the shipment by transfer of the bill of lading from the consignee.

Opinion No. 29.

IF NO SPECIFIC TIME OF SHIPMENT IS NAMED A REASONABLE TIME IS UNDERSTOOD.

Question—On October 25th we bought of a manufacturer a carload of lumber through their agent. On the 30th we received confirmation of the order. Nothing was said about the time of shipment, except that in sending the sizes on October 26th, we told them to “ship at once.” On November 1st they wrote that they would ship it “the coming week.” No part of it has been shipped yet. We could have disposed of the carload during this time at a very good profit. During all this time we have been completely out of this kind of lumber. Have we a just claim for damages?

Reply: It does not appear whether the confirmation received by the buyers on October 30 was sent by the sellers before or after their receipt of the instruction to “ship at once.” The only importance of this point is this: If the sellers confirmed the order after receiving the instruction to “ship at once,” they were bound to ship at once. If they confirmed the order before receiving this instruction, then the instruction formed no part of the contract, and is not to be taken into account; in that case the sellers were bound simply to ship the lumber within a reasonable time—within the time within which these sizes commonly are shipped. If they have not done so, they are guilty of a breach of contract and the buyers may recover any damages the breach has caused them. They are entitled to be placed by the sellers in as good a position as they would be in if the sellers had carried out their contract according to its terms. The letter of the sellers of November 1, saying they would ship the goods “the coming week,” forms no part of the contract. The agreement was made before that letter was written, and it is binding as originally made. The letter is of importance, however, as showing an estimate of the sellers themselves as to what was a reasonable date of shipment. The letter is not binding upon the buyers, if they can prove that an earlier date would have been reasonable; but it is binding upon the sellers, who wrote it.

Opinion No. 36.

ONE WHO BUYS LUMBER IS LIABLE THOUGH HE TRANSFERS IT BEFORE DELIVERY.

Question—An individual buys a carload of lumber for future delivery and before it is delivered he forms a partnership with two other persons and turns the order over to the firm. Delivery of the lumber is made to this firm. Please say whether the individual is liable, or only the partnership. It is a limited partnership and the buyer has only a certain definite amount at stake with it.

Reply: This is simply the case of an individual who has purchased goods and then has sold or transferred them before they have come into his actual possession. Such cases, that is, of a second sale before delivery to the first purchaser, are very common, and the original purchaser remains liable precisely as if delivery has been made to him and he had afterward disposed of the goods as he saw fit. In the case our correspondent puts the seller may look to the first buyer unless he has agreed to release him and look to the firm.

Opinion No. 38.

A LUMBER SALESMAN GENERALLY HAS NO POWER TO BIND HIS PRINCIPAL.

Question—One of our traveling salesmen has just sent in a larger order than we feel safe in filling for that particular customer on the liberal terms of credit allowed him in the same contract. Are we compelled to fill the order, or may we reject it without incurring any legal liability?

Reply: Ordinarily a traveling salesman is authorized merely to take orders and submit them to his principal for acceptance or rejection. He has no power to bind his employer irrevocably by a contract of sale. Our correspondents are justified in refusing to fill an order sent in by their salesman unless the latter was expressly authorized to make a valid and binding sale upon his employers’ behalf, or unless traveling salesmen are usually clothed with this power. In the latter case each salesman will be presumed to have the powers usually possessed by men of this class, unless the buyer had notice of a limitation upon this general and usual power in the case of the salesman with whom he was dealing.

Opinion No. 35.

USING LUMBER WITHOUT CONSENT OF SHIPPER WHERE QUALITY IS DISPUTED.

Question—We shipped a carload of lumber to a party and they complained of the quality and refused to settle in full. We insisted upon a settlement in accordance with invoice, or re-inspection of the entire carload by an inspector that would be satisfactory to both parties. We sent a man to look at the lumber and found that it was put in a dry kiln without our consent, and this, of course, prevented an inspection of the lumber in its original condition. Are we correct now in insisting upon a settlement in full as invoiced, and can we maintain our action in a lawsuit?

Reply: If your lumber was received by the company and, without authorization from you they put it in the dry kiln, so as to prevent your examining it or taking it back, they would be liable to you for the invoice price. They cannot accept the lumber, use it and then refuse to pay. By their acceptance they waive any defects in quality or quantity, which can be ascertained upon an inspection of the lumber upon arrival. They do not waive any defects that are what we call “latent,” that is, that are not readily ascertainable upon an examination of the lumber on arrival, but only show after the lumber may be put in use. As we take it, such complaints as have been made relate to alleged defects which they ascertained as soon as they received the lumber. In that case they had no legal right to use it, and if they used it, they are liable for the invoice price.

Opinion No. 34.

IN AN F. O. B. SALE, SHIPPING POINT, THE CARRIER IS THE BUYER’S AGENT.

Question—If I buy goods f. o. b. point of shipment and part of the goods invoiced are lost in transit can the consignor enforce payment for the goods not received?

Reply: When goods are bought f. o. b. place of shipment they are delivered to the buyer at the place of shipment. Title to the goods passes to the buyer as soon as delivery is made to the carrier and the carrier is an agent of the buyer to bring his goods to him. If the goods are lost on the way the buyer must pay for them, just as if they had reached him; they have reached his agent and have been delivered to him, and that is all the buyer can ask. When goods are sold the presumption always is that the buyer is to take charge of them in the place in which they are at the time of the sale. There is no presumption that the seller is to carry the goods to any place the buyer may select and deliver them to the buyer there. The seller may do this, of course, and he frequently does do it; but he is never bound to do it unless he has expressly so agreed. If the buyer, in any case, declared that the goods were to be brought to him by the seller he must show some clause in the contract that has this meaning; in the absence of such a clause the buyer, either in person or through an agent, is to take possession of the goods in the place they occupy at the time of the sale. The words, “free on board,” are sufficient to prevent the seller from making a good delivery while the goods are in his own warehouse, as he otherwise might do. These words place upon him the duty of taking the goods to the boat or cars and meeting the expenses necessary actually to start them on their way; but when this much is done the seller’s whole duty is done. The goods then belong to the buyer and have been delivered to him; that is all that is necessary to raise an obligation on his part to pay for them.

Opinion No. 33.

BUYERS CAN INSIST THAT LUMBER, PURCHASED ON CREDIT, BE DELIVERED.

A retailer says: “Lumber was sold to us by a special written contract on a six months’ credit, the lumber to be ordered out as fast as we saw fit. We have taken a little more than half and only about two of the six months have expired. We order another small shipment to be made. The seller replies that he will send this car, but that he can make no more deliveries unless we are ready to discount part, at least, of our bill. He says that he has already extended credit to us as far as he feels justified in doing. He seems to pay no attention to the contract, under which we were entitled to order out all of the lumber at once, or in such shipments as suited us, and were to have a credit upon the whole bill of six months. Will he be sustained in the stand he has taken? If we have a remedy please say what it is?”

Reply: When lumber has been sold and part of it delivered, it is too late for either the buyer or the seller to alter the contract without the consent of the other. If the sale is upon credit, as in this case, the terms of credit are such as have been agreed upon in the beginning. Either the buyer or the seller may ask, of course, to have the terms changed before all of the deliveries have been made, but if the other does not agree to the change the contract must be performed as it was made. It would be as reasonable for the buyer to refuse to accept the remainder of the lumber unless the terms of credit were made more favorable to him, as for the seller to refuse to continue his deliveries as agreed unless his new proposal as to credits were accepted. If the seller, in the case our correspondents put, refuses to go on with the contract in its original form, the buyers will have the same remedy they would have had if no deliveries at all had been made. They may go into the open market, when the time for delivery arrives, buy lumber enough to finish out the contract, and then hold the seller for such amount as they are compelled to pay over and above that named in the contract. Or, if they do not choose to do that, they may establish the amount of the loss arising from the seller’s breach of contract in any way in which it can be shown to the satisfaction of a jury and collect the damages so established. Or the buyers may cancel the remainder of the contract if they prefer that course. There is only one exception to this rule. Any one who has bought goods on credit is bound by an implied agreement to keep his credit good, and if he fails to do so he cannot require the seller to deliver the goods. Accordingly, if a buyer, before all of the lumber is delivered, shows an inability to pay any just claim in the ordinary course of business, when it falls due, those who have sold him on credit may lawfully refuse to go on with the deliveries and the buyer will have no remedy.

Opinion No. 39.

ONE CUSTOMER CANNOT DEMAND THAT CREDIT BE EXTENDED TO ANOTHER.

Question—Lumber corporation No. 1 bought from lumber corporation No. 2 several carloads of lumber for future delivery. Corporation No. 1, before the agreed time of delivery, commenced proceedings of dissolution. Out of corporation No. 1, however, a new corporation, No. 3, was formed. Corporation No. 3 now demands of corporation No. 2 that they deliver this lumber. No. 2 declines on the ground that the personal, as well as the financial, standing of the new corporation is entirely changed. Do you think that corporation No. 2 has a legal right to do this? Where the word corporation is used we mean that one company is incorporated under the laws of one State, while the other two companies are existing under charters from different States.

Reply: If any person or corporation has been willing to extend credit to corporation No. 1 that same person or corporation cannot for this reason be compelled to extend credit to corporation No. 3, or to any other person or corporation. If a corporation has bought goods and paid for them it may assign its right under that contract, which is simply a right to demand delivery of the goods to another corporation; but if it has bought goods on credit, and has then gone into dissolution, it cannot demand that the credit of any other corporation be substituted for its own.

Opinion No. 40.

GIVING A BAD CHECK DOES NOT PREVENT DISCHARGE IN BANKRUPTCY.

Giving a worthless check for goods and disposing of them immediately is not a ground for refusing a discharge from bankruptcy. Judge Hough of the United States District Court has recently granted a discharge to a party who filed a petition in bankruptcy on October 24, 1906, with liabilities of $11,577 and no assets. His discharge was opposed by a creditor, who said that on June 6, 1892, the debtor bought $1,964 worth of goods, giving a check in payment, which was deposited in bank and came back marked “no funds.” The creditor went at once to debtor’s place of business and found that he had sold out and left the city. When debtor’s application for a discharge came up for a hearing he excepted to the specifications of objections, and Judge Hough sustained the exception on the ground that the objections are not within the statutory list.

Opinion No. 41.

WHAT IS CONVEYANCE ON F. O. B. SHIPMENT?

Question—What is the meaning of f. o. b. Philadelphia, Pa.? What is the meaning of f. o. b. cars Philadelphia, Pa.? Is there any difference between the two above? If so, what is it?

2.—In selling goods f. o. b. New Orleans, and same are delivered alongside of steamer, does the shipper or consignee have to pay cost of handling charges in transferring from cars to steamer; that is, on goods shipped from New York to New Orleans.

Reply: (1) When goods are sold f. o. b. place of shipment the meaning is that the seller, for the amount named in the contract, will supply the goods and will bear the expense of delivering them on board that conveyance which is to carry them to their destination. The only difference between the two phrases set down above is that the latter binds the seller to deliver the goods on the cars at Philadelphia without any expense to the buyer; while the former binds him to deliver them at his own expense on some conveyance not yet specified, which will carry them to the buyer.

(2) If goods are sold f. o. b. New Orleans, and they are to be carried to the buyer at some other place in a steamer, all expenses necessary to deliver them aboard the steamer are to be borne by the seller. The conveyance on board which the goods are to be delivered is that which is to take them to their destination. If goods are to be carried to a buyer on a steamer there is no reason why he should bind the seller to load them on freight cars and make a tender of them there.

Opinion No. 42.

FAILURE TO DELIVER ONE INSTALLMENT CAUSE FOR CANCELLING ORDER.

Question—We purchased a quantity of lumber to be shipped in February, March and April in equal monthly shipments. The first shipment has not been made in February and we would like to know whether this entitles us legally to cancel the entire contract or only the February lot. In other words, does the breaking of a contract in one instance cancel the entire contract?

Reply: When goods are to be delivered in instalments the courts of this State hold that the seller’s failure to deliver one instalment justified the buyer in refusing to accept that tender and also in rescinding so much of the contract as is yet unfulfilled. It is one contract, not several, and the seller cannot insist on a right to deliver only such instalments as he finds it convenient to deliver and to have them accepted. The buyer has not agreed to pay anything at all for part of the goods. His contract is that he will pay a certain amount for all of them. If he is not to have all of them, it is quite conceivable, and is often a fact that any part less than all is of very much less than proportionate value to him; it may have practically no value to him at all. In any event, the seller has agreed to do a certain service and the buyer has agreed to pay a certain sum of money. The court will not infer from that an obligation to pay half the money for half the service or to accept half the service on any condition, if the other half is to be, or has been, withheld.

Opinion No. 43.

Question—A customer places an order with the mill for November, December, January and February, proportionate shipments. The mills are unavoidably delayed in executing the order, but are finally able to make shipment of practically the whole order in February. The customer refuses to pay invoices for all the goods shipped in February, but claims dating on proportionate amounts in April, May and June. Is he justly or legally entitled to the dating and could he hold the goods subject to sellers’ order?

Reply: There seems to have been no clause in this contract releasing the mill in case of such a delay as has occurred. In the absence of such a clause the buyer was justified in refusing to accept the goods when all of them were shipped in February. He is entitled to hold the goods subject to the seller’s order, or to return them. He cannot, however, force another contract upon the seller than that which was actually made. The mill may take back its goods or allow the buyer to accept them upon such new terms as may be agreed upon. The buyer is justified in receiving the original contract. This is upon the supposition that the buyer has not during the past four months said or done anything to lead the seller to suppose that he was satisfied with the delay, that he would accept all of the goods as readily in February as if shipment had been made in strict accordance with the terms of sale. If he has done that he is estopped now from making any objection to the tender.

Opinion No. 44.

AMOUNT OF CLAIM FOR DAMAGE AGAINST CARRIER.

Question—We made a shipment via two connecting railroads. When it reached a junction prior to delivery at destination, i. e., a point on the second road, was badly or entirely damaged in a wreck, and our customer asked that we immediately replace the shipment, which we did, and made another shipment of the same kind of lumber four days later, but in the interim between the time of the first shipment and the time we received the replacing order from the customer, the price advanced, and in our second invoice we naturally charged the customer for the advance. The claim department of the railroad now offers to settle with us at the original invoice price of the first shipment and declines to entertain a settlement at the advanced price. We claim that our position is entirely legal in the matter, and that we are entitled to the advanced price for the shipment that was lost, the same representing the value of the goods at the time the goods were destroyed.

Reply: Usually the measure of damages in a case of this kind is based upon the value of the goods at the time and place and in the condition in which they ought to have been delivered; the freight is to be deducted from this, if it has not been prepaid, and then interest is to be added from the day on which delivery ought to have been made to the day of payment; there is to be added also any expense to which the owner of the goods has been put as a necessary and natural result of the loss. What the carrier is bound to do is to put the owner of the goods as nearly as possible in the same position he would have occupied if the carrier had done his full duty in the first place. If the carrier had done his duty the owner could have sold the goods at the market price on the day of delivery at the place of delivery, he would have had the interest on the money thereafter, he would have escaped all incidental expenses arising out of the loss, and he would have been called upon to pay freight to the carrier, if it had not been paid in advance. There is only one exception to the rule that is at all common. If the goods have already been sold for delivery at destination, at a price less than that which chances to prevail when the day of delivery arrives, and if the carrier, at the time of shipment, had actual or constructive knowledge of this fact, then the owner can demand only the selling price with interest. In that case, if the carrier had done his duty, the owner would have obtained for his goods, not the market price, but only the contract price. Whether the carrier had or had not notice of the sale makes a difference in this respect; that a carrier is not to be held for a larger loss than he had in contemplation when the freight rate was fixed and the degree of care demanded of him was settled. If he had no knowledge of the sale, actual or constructive, he is bound for damages based upon the market price, as in the other case. The fact that other goods at a different price were sent to replace the lost shipment does not enter into the matter.

Opinion No. 46.

RISK IN SENDING CHECK TO DRAWER’S BANK FOR CERTIFICATION.

Question—We received a check from one of our customers and sent it to the customer’s bank for certification. The bank failed before the end of the next day and our check was not paid. Can we not return it to the maker and demand the face of it from him?

Reply: If the drawer of the check in this case had sufficient money on deposit to meet it our correspondents have no other recourse except against the assets of the insolvent bank; the depositor is discharged. The usual rule is that when a check is delivered that is drawn upon a bank in the same place in which the payee resides the drawer guarantees the solvency of the bank during the remainder of the day on which the check was delivered and the whole of the next day. The holder has this much time in which to present the check and draw the money; if the bank fails meanwhile the loss is upon the drawer of the check and the holder takes the risk of failure after the second day. But this rule does not apply when the holder of the check takes it to the bank and has it certified before the end of the next day after he receives it. Certification binds the bank and releases the drawer. So far as the drawer and holder are concerned, the effect is precisely the same as if the holder had drawn the money and had then deposited it to his own credit in the same bank.

Opinion No. 45.

A CONTRACT MAY BE CANCELLED WHEN ONE PARTY IS GUILTY OF BREACH.

Question—Lumber has been sold for delivery in installments running through a considerable period. Payments are to be made in installments also. The buyer has been very lax in this regard, however; he has not made a single payment strictly on time, and in some cases has delayed until the seller has been compelled to threaten suit. Is the seller bound to go on making deliveries to the end of the time named in the contract, getting his money whenever and however the tardy buyer sees fit to pay it?

Reply: If a seller agrees to deliver the goods at certain times, and the buyer agrees to pay for them in installments at given dates, each promise is a consideration for the other. If either the buyer or the seller fails to do his full duty under the contract he is in no position to demand that the other shall do what he has agreed to do. In other words, as soon as either is guilty of any breach of the contract the other may declare the whole agreement at an end; he may refuse to do anything further under the contract himself, and may demand damages of the person who was guilty of the breach. If a buyer fails to meet any payment promptly when it is due, the seller, if he chooses to do so, may immediately rescind the contract and bring suit for the unpaid installments and for damages. If he had not this privilege he might be compelled to go on for months delivering his goods to one who had already shown his unwillingness or inability to make good his promise of payment.

Opinion No. 47.

LUMBER ON A CONSIGNEE’S SIDE-TRACK IS IN CUSTODY AND AT THE RISK OF THE CONSIGNEE.

Question—When does the railway’s liability end and the consignee’s begin on lumber delivered in cars on the consignee’s side-tracks; i. e., if a carload was burned in forty-eight hours after being placed for the consignee, would the loss fall on the transportation company or the consignee?

Reply: When a carload of merchandise is delivered upon the consignee’s own side-track and the consignee has notice, express or implied, of that fact, then all liability of the railroad company for the safety of the merchandise ceases at once. The goods are still in the company’s cars, but that is not sufficient to make the company liable, for the cars themselves are in the custody of the consignee and upon his premises. The goods have been delivered to the consignee, and that is the last of the duties the carrier undertook to perform. A railroad company cannot be expected, and in some cases would not be allowed, to place its watchmen in private freight yards and to extend over and through those yards its system of protection against fire. When cars containing goods have been delivered upon the consignee’s premises the goods themselves have been delivered there. The carrier is no longer liable, either as carrier or as warehouseman and the courts have so decided.

Opinion No. 48.

WHERE A SELLER REFUSES TO MAKE DELIVERIES, BUYER CAN PROTECT HIMSELF.

Question—A places a contract with B for future delivery of lumber beginning in October; B, for certain reasons, does not care to deliver this contract. A has the opportunity to buy the identical goods for the same delivery from competitors at the same price, after being notified by B that he does not care to deliver this contract. Does the fact that A has the opportunity to cover himself on the same conditions release B of damages arising from non-delivery of the contract, or can A wait until the time of delivery before buying goods in the open market against the contract of B which the latter refuses to deliver?

Reply: If B is under contract to deliver goods to A in October, and if, before October, he notifies A that he does not intend to fulfill his contract obligation, A may accept that statement as final and protect himself at once. He may make other arrangements for an October delivery and compel B to pay the loss, if any, or he may sue at once for breach of contract. The buyer is not bound to pursue this course, however. He may act upon the supposition that, upon further consideration of the matter, the seller will conclude to do his duty after all; and so the buyer, A in this case, may wait till the time arrives for the October delivery, and may then buy goods to replace those that the seller ought to have delivered, holding the seller liable for the loss, if any, or he may then sue for breach of the contract. If this costs the seller more than the other plan might have cost him, the fault is his own. He will not be heard to complain because the buyer has taken it for granted that he really would perform his contract obligation when the time arrived, in spite of his previous statement that he did not intend to do so.

Opinion No. 49.

ALL CONDITIONS OF A CONTRACT MUST ACTUALLY BE EMBODIED IN THE CONTRACT.

Question.—The following is a general form that is frequently printed across the top of the letter heads of manufacturers: “All agreements are contingent upon fires, strikes, delays of carriers, accident and other contingencies beyond our control.” What effect does this have on a contract when such letter heads are used when quoting prices and when accepting the order?

Reply: Any provision that is intending to form part of a contract ought to be introduced into it in express terms or else referred to so that there can be no mistake regarding it. In the particular case under consideration the clause should be incorporated in the contract or acceptance, or the contract should state that the sale is made subject to the terms and conditions printed across the top of the paper. Either one of these would be a simple, easy procedure and would remove all doubt. A contract usually begins with the name of the place and a date, or with the names of the parties; and it ends with one or more signatures. Both parties are bound by all that lies within these limits and by everything beyond that is referred to as forming part of the agreement; but neither party is, as a rule, expected to look anywhere else—even around the margins of the same paper—to ascertain his rights and liabilities. It may be possible, in some cases, to make a provision printed on the margin of the paper containing the contract part of the contract itself, but there is always more or less doubt upon this point, and no doubt should be left where it is so easy to make the meaning plain. If the marginal printing is to be useful at all it will be mainly in connection with a statement that the contract was made subject to a certain usage of the business, or a certain custom of that particular house, and that this custom was well known to the buyer; as proof of this fact the words across the top of the paper would be useful.

Opinion No. 50.

A CARRIER IS LIABLE FOR ANY LOSS CAUSED BY HIS DELAY IN DELIVERING GOODS.

Question.—Inform us what recourse we would have against a railroad for a shipment of lumber from Buffalo to New York, which has already been on the road eighteen days, as shown by the shipping documents, and has not arrived yet. In the meantime the market dropped some 10 per cent. in price. This lumber was bought f. o. b. Buffalo.

Reply: A carrier is bound, not only to deliver the lumber entrusted to him for carriage, but to deliver it with reasonable promptness. The courts recognize the fact that promptness of delivery has an importance second only to the fact of delivery itself. What is to be held as constituting reasonably prompt delivery is to be decided in accordance with nature of the goods and all the circumstances of the particular case; it is such delivery as carriers of the kind in question, carriers by rail or vessel, as the case may be, ordinarily make in handling goods of the same kind as those in question. When the time arrives for delivery to be made, under this rule, and the goods are not delivered the consignee is entitled to sue for their value at destination on the day on which delivery ought to have been made. If the carrier is able to deliver the goods, and offers to do so, at any time before he has been required to pay for them as goods lost, the consignee cannot refuse to accept them and still recover their full value. He is bound to accept the goods whenever they are tendered, no matter how great the delay may have been; but in such a case he still has a valid claim for any loss he may have sustained as a result of the delay. His damages are at least as great as that amount by which the market value of the goods on the day of delivery is below their market value on the day on which delivery ought to have been made; to this is to be added any other loss or expense brought upon him as a direct result of the carrier’s delay.

Opinion No. 13.

THERE IS NO REMEDY AFTER ACCEPTING LUMBER.

Question.—I purchased some lumber from a party in New York State at a given figure f. o. b. shipping point, and had it forwarded by the railroad company according to my instructions. Upon arrival my customer reported to me a shortage of several hundred feet, of which I in turn notified the party from whom I bought. He stated that he hardly thought such a shortage was possible and asked me to retally the lumber. I communicated with my customer, who told me that the shortage reported was correct, and that he had used up the lumber as he was in need of the lumber, although I requested him to hold it intact. My customer in settling with me deducted for the full amount of the shortage, whereas the party who sold to me refuses to accept settlement on this basis, offering me an affidavit from his shipper that the quantity alleged to have been shipped by him was correct. Am I compelled according to the New York court rulings to remunerate the party who sold to me as per his invoice? He claims that the lumber ceased to belong to him when he placed it at the railway company’s depot subject to my instructions. For this reason he demands full payment. I am in a position to furnish an affidavit from the party to whom I sold the lumber to the effect that the shortage actually occurred at destination, although the lumber was received in good condition.

Reply: This lumber was sold f. o. b. shipping point and it is true, as the seller says, that title passed to the buyer at that point. This fact, however, does not excuse the seller for delivering short count or tally, if he made such delivery. He undertook to deliver a certain quantity of goods at the shipping point, and his contract obligation was not fulfilled unless he delivered that quantity. It does not appear, however, that the contract was such as to allow the buyer to accept less than the quantity sold at a pro rata price. As the contract is described to us, it was a sale of a definite quantity for a stipulated price, with no other provision. That being the case, the buyer, when tender was made to him had no choice other than to accept the tender as satisfactory, or else to reject it and claim damages for breach of contract. He did accept the goods and he used them. It is too late now for him to say that the tender was in any respect unsatisfactory. The buyer might have rejected the goods on account of short tally, and then he could either have claimed damages for breach of contract, as we have suggested, or he could have communicated with the seller, offering to take the shipment at less than the contract price—could have made a new contract, in short. He did neither. He accepted the goods. He will not be heard now to say that they were, in any respect, not such goods as the contract called for. Our correspondent can be compelled to pay for these goods the full contract price, and the person to whom he sold them can be compelled to do the same.

Opinion No. 31.

PROPOSED FREIGHT RATE ADVANCE.

In view of the agitation regarding the proposed advance in freight rates it is suggested that our members protect themselves as fully as possible in making quotations. It is believed advisable to use a clause either printed or stamped on the letter-head or quotation stating substantially the following:

“All quotations made and orders accepted are based on present freight rates.”

Where this clause is used it should be printed or stamped in such a way that it becomes a part of the quotation or correspondence. Stamping the clause on the margin of a letter-head is considered inadvisable.

Opinion No. 110.

ACCEPTANCE OF AN AMOUNT OFFERED AS “PAYMENT IN FULL” MAY OR MAY NOT CANCEL THE DEBT.

Question—A customer sends me a check for a certain amount and inserts the following on the face of his check: “In full to June 1.” Does my indorsement give my receipt in full to this date or not? Can I indorse his check and write him a letter advising him that I am using the check only to apply on the account?

Reply: Suppose A owes B a certain sum of money and there is no doubt or dispute as to the amount actually due. Then if A pays to B less than the amount, in cash or by check, saying at the time, “this I tender as payment in full,” B may keep the money or cash the check without losing the right he previously had to demand what was still due and unpaid. No man, without the consent of his creditor, can discharge the whole of his debt by paying part of it, if the amount is liquidated and certain. Suppose, however, that there has been no agreement as to the amount due or that there is an honest and well-founded dispute concerning the matter. Then when the debtor sends any reasonable amount, with a statement that it is tendered and is to be accepted, if at all, as payment in full, that is his estimate of the sum due. The creditor cannot accept the tender without accepting the estimate; if he does accept the tender the amount due is thereby agreed upon and fully paid. If the creditor is not willing to accept the tender as payment in full he must return it. Then an agreement may be reached as to the amount actually due, or if the two cannot agree the matter may be left to the courts. The debtor has this privilege, in a case of this kind, because it would be unfair to him to allow the creditor to keep what the debtor honestly believed to be the whole sum due, and still allow him to sue for more, when, if he had brought his suit in the first place it is possible he might not have been able to recover even as much as the debtor has already paid him.

Opinion No. 51.

PROTEST IS NOT NECESSARY TO HOLD PARTIES PRIMARILY LIABLE.

Question—Is it necessary, or is it in any way helpful to have a note or an accepted draft protested, regard being had only to the maker of the note or the acceptor of the draft?

Reply: The object of a protest is to inform a person who is secondarily liable upon a bill or note that the person primarily liable has been properly called upon and has refused to pay the amount. There could be no object in conveying formal information of this kind to the parties primarily liable, because they know what the facts are, they know, that is, that demand has been duly made of them and that they have failed to comply with it. Accordingly it is held that protest and notice are not necessary to charge the maker of a promissory note or the acceptor of a bill of exchange. We believe this to be the sound rule in all cases.

Opinion No. 52.

F. O. B. SHIPMENTS.

Question.—Please advise us, what the position of a shipper is who takes an order for a full carload of material at a price including freight to destination, but where the shipper takes out a bill of lading in the name of the buyer. The shipper claims he simply guarantees freight to destination, and having the bill of lading issued in the name of the buyer places the risk of loss or damage in transit on the buyer.

Reply: A buyer of goods takes title to them wherever they may be at the time of the sale unless the contract provides otherwise or unless the seller by some act of his own reserves the title to himself during transportation. A mere agreement on the part of the seller to pay the freight is not sufficient to rebut the presumption that title was to pass on delivery to the carrier. When goods are sold f. o. b. destination the seller undertakes to carry them to their destination and there deliver them. They are his goods, and the risk is his, until he has tendered delivery at that place; this is true because the buyer cannot be compelled to accept a tender made at any other place; but a mere agreement that, for a given price, the seller will furnish the goods and pay freight upon to a given place, does not make him liable for their delivery in that place. If he was bound to deliver them at destination the contract would say nothing about freight; an obligation on the seller’s part to deliver the goods at destination is, in itself, an obligation to pay freight upon them or to carry them himself, and it is not for the buyer to choose which he shall do. If the agreement to pay freight did place the risk on the seller during transportation he could not escape that obligation by his own act in taking out a bill of lading in a particular form. If he was at liberty, under the contract, to deliver the goods at the shipping point, however, he could increase his obligation by his own act, and taking the bill of lading to his own order would, if not otherwise explained be sufficient for this purpose. In this case the bill of lading was taken in the name of the buyer, and that is consistent with the seller’s claim that a valid delivery could be and was made at the shipping point and the carrier was an agent of the buyer.

Opinion No. 53.

PAYMENT OF FREIGHT NOT ALWAYS TRANSFER OF TITLE.

Question.—Please advise us if in selling lumber freight paid to destination we are liable for damage in transit. As we understand it, when we sell lumber delivered at destination we are liable, but when we sell it freight paid the buyer is liable.

Reply: The person who owns goods while they are in transit must bear the expense of damage or loss if they are not insured. If the goods have been sold the title during transit may be either in the seller or the buyer. It is sometimes perfectly clear that title is in one or the other, while in some cases it is a very difficult question. Payment of freight is one item to be taken into consideration, but it is generally not alone absolutely conclusive of the question one way or the other. Our correspondent is correct in saying: “When we sell goods delivered at destination we are liable.” It is equally correct to say: “When we sell them, otherwise than for delivery at destination the buyer is liable.” It is not always true, however, that the buyer is liable when the seller pays the freight. Goods that had not been ordered, for example, or goods slightly different from those ordered might be sent in the expectation that the buyer would accept them. In such a case the seller would probably prepay the freight but title would remain in him, and the risk would be his, until the buyer had received the goods and accepted them. If the contract requires the seller to pay freight that is good evidence, if there is nothing on the other side to offset it, that title and risk are to be in the buyer during transit; this is so because if the seller was bound to deliver the goods at the buyer’s end of the route he would be bound to pay the freight, as a part of this obligation, and would not separately agree to pay the freight. If the contract is silent on that subject the mere fact that the seller pays the freight is not sufficient to show that he reserves title. All the facts of the case are to be taken into consideration, the presumption being that title passes when the goods are delivered, properly directed, to the carrier. If the buyer claims that title did not pass to him at that instant the burden of proof is on him, and the mere fact that the seller paid the freight is not alone sufficient to overcome the presumption.

Opinion No. 54.

FILING CERTIFICATES IN MARYLAND.

Some of our members have recently received communications from the Secretary of State of Maryland calling their attention to a law which went into effect in Maryland June 1st, 1908, regarding filing certificates permitting foreign corporations to transact business. The Secretary of State’s letter reads in part as follows:

“The name of your company appears on the records of this office as a Foreign Corporation doing business in Maryland. As the recently enacted Act of the Legislature repeals the law under which you are authorized to transact business in this State, it will be necessary for you to comply with the provisions of the new law, a copy of which I enclose herewith, together with a blank form, convenient for use in connection therewith.”

Our attorney at Baltimore writes as follows regarding the necessity of complying with the provisions of the law above referred to:

“It is not necessary for a foreign corporation who maintains no office or agency, or has no assets in this State, to file a certified copy of its charter, the required certificate under the act and the franchise tax. A foreign corporation under the facts above stated may send any number of salesmen for the purpose of making sales in this jurisdiction without having to comply with the foreign corporation law.”

Opinion No. 55.

RAILROADS CAN INSIST ON ACCEPTANCE OF DELAYED SHIPMENTS.

Question.—I shipped a carload of lumber to a customer consigned to myself and it was apparently lost in transit. The delay caused my customer to cancel this order with me, whereupon I notified the railroad that I would not accept delivery and would hold it responsible for not only the value of the car, but any damages resulting to me. The car has just turned up and the railroad insists that I must take it and put in claim for loss. Am I compelled to accept the car?

Reply: If the road offers to deliver the lumber now the consignee should accept it. A carrier is not a dealer, and goods tendered by it cannot be refused, however late the tender may be, or however seriously the goods may be damaged, provided they are recognizable as the goods actually shipped and have any value at all. The consignee cannot leave them in the hands of the carrier and demand full value for them. He must accept them and do the best he can with them. His acceptance of them does not relieve the carrier of its liability, and the consignee is entitled to recover all loss caused by delay, or by damage to the goods, as soon as the loss has been ascertained. If the market price has declined since the day on which delivery should have been made that difference in value is to be included in the damages; usually that is the principal part of the loss, and frequently it is the whole of it.

Opinion No. 56.

QUESTION OF DISCOUNT.

Question.—I take an order from my customer, the terms of payment being stated 2 per cent. 10 days. The buyer makes settlement in 20 days and claims that he is entitled to the discount by paying interest for the extra time which he has taken over and above the ten days. On the other hand, I claim that the bill not having been paid within the discount period becomes net, and that face amount of the bill therefore becomes due on the eleventh day Which is right?

Reply: If a contract of sale gives the buyer no right to a discount he has no such right. If the contract does give him a right to a discount, upon certain terms, he must comply absolutely with those terms in order to entitle himself to the discount. The situation is just this: A seller who is entitled to demand the full face of his bill, says to the buyer, “I will deduct part of the amount if you will do a certain thing at a certain time in a certain way.” The buyer cannot fail to do the thing so specified at the time and in the manner named, and still claim a discount as if he had done it. The buyer is entitled to no discount at all in the case here put.

Opinion No. 57.

LUMBER MAY BE RETURNED TO THE CONSIGNOR IF THE CONSIGNEE WILL NOT ACCEPT IT.

Question.—We ordered a carload of lumber from a shipper in the South and advanced $200 on account before the shipment arrived at its destination. This shipper received from the railroad company a bill of lading in his name marked “non-negotiable,” which he indorses to us and mails to us and notifies the railroad by letter that the shipment is for us. On arrival we find that the lumber is not in accordance with our order and we refuse to accept it, whereupon the railroad stores it for account of the owner. We notified the railroad that we would release the car to the shipper upon the latter paying to us the $200 advanced. The railroad has since delivered the car back to the shipper on the latter’s instructions by their giving the railroad the usual bond, which the railroad insisted upon having, and we still retain the original bill of lading indorsed to our order. We put in a claim against the railroad company for the $200 advanced, taking the position that they had no right to deliver the car to the shipper without the bill of lading or an order from us. The railroad refuses to pay our claim, saying that the bill of lading was a non-negotiable one, and inasmuch as the shipper took it out in his own name he had a right to regain possession of the car, and that we waived our rights, although retaining the bill of lading, by refusing to accept the lumber on arrival. We did not pay the freight. What course can we pursue to recover the $200 advanced?

Reply: If a consignee refuses to accept goods shipped under a non-negotiable bill of lading they may be returned to the consignor. The carrier is not bound to act as agent or intermediary for the settlement of any differences between the two. Here our correspondents have simply extended a credit of $200 to the shipper. If he does not voluntarily meet the obligation the amount may be recovered by suit.

Opinion No. 58.

RAILROADS MUST PAY VALUE AT DESTINATION FOR DAMAGES ON LOST LUMBER.

Question.—Should the railroad in settling claims for shortage of lumber pay for it at our cost price or at the current market price?

Reply: Unless the contract between the shipper and carrier provides for some other measure of damages, the principal amount to be paid by the carrier when the lumber is lost or destroyed is the market value at destination. If the freight has not been paid in advance it is to be deducted from market value. There is to be added, on the other hand, interest at the legal rate from the day on which delivery should have been made to the day of settlement; and there is to be added also any incidental expense to which the consignee may have been put as a direct result of the carrier’s failure to do his duty. This is the only way in which the consignee can be placed in as favorable a position as he would have occupied if the carrier had done his duty, the only way in which the whole of the loss can be placed upon the carrier, who has caused it; and this is what the law aims to do in every case.

Opinion No. 59.

SUIT CAN BE INSTITUTED IN NEW JERSEY ON JUDGMENT OBTAINED IN ANOTHER STATE.

Question.—Some time ago I secured a judgment in Pennsylvania against a party who now lives in New Jersey, and has some property there. Can I make collection in New Jersey?

Reply: A judgment of a Pennsylvania court can be enforced by a levy on property in New Jersey, without regard to the place of residence of either the plaintiff or defendant. If this judgment was secured in Pennsylvania it is without force in New Jersey. In that case, however, another suit can be started in New Jersey, and the proceedings will be brief and inexpensive; he will have to prove merely that suit was previously brought in Pennsylvania, in a court of competent jurisdiction, and judgment rendered in his favor. Judgment in New Jersey will follow immediately and as a matter of course; under that judgment he can levy on property in New Jersey.

Opinion No. 60.

NOT ALWAYS NECESSARY FOR CARRIER TO NOTIFY CONSIGNOR THAT SHIPMENT IS REJECTED BY CONSIGNEE.

Question.—Have we a claim on the transportation company for the invoice value of the shipment under the following conditions: We made a shipment of a car of lumber, and when it arrived at destination the railroad offered it to consignee and he refused it. Some time later the railroad sold the lumber for what it would bring, which, it appears, was only about 50 per cent. of our invoice. Is the transportation company under obligation, in a case of this kind, to notify the shipper that the lumber is at destination refused and thereby give the shipper an opportunity to dispose of the lumber without loss?

Reply: If a carrier has no notice to the contrary, he is entitled to assume that the consignee is owner of the lumber and that any delivery or disposition of it of which the consignee cannot complain will be satisfactory to all persons. If the goods are sent C. O. D. or if the carrier is instructed not to deliver them to the consignee until they are paid for, or if he receives any instructions from which he may infer that the consignor retains title to the goods, in any such case, it becomes the carrier’s duty to inform the consignor of the consignee’s refusal to accept the goods. The same result follows if the carrier is expressly directed to give such notice and if he accepts the goods under these directions. In any other case the carrier is not bound to assume that the goods have been sold and that the consignor is retaining title to them to secure payment of the purchase price, or that the consignor has any interest in them at all. He may assume that the consignee has already paid for them, or that they were the property of the consignee before shipment. The consignor has put it in the power of the consignee to take the goods and do as he pleases with them, and the carrier is bound merely to act in such manner that the consignee may have no valid ground of complaint. In the absence of special instructions to the carrier, or of knowledge on his part that the goods belong to the consignor, the rule is simply this: That the carrier is not to be expected to deal with two different persons with reference to a single shipment or the disposition to be made of it; that he may safely assume such an understanding between consignor and consignee that they will keep each other informed, if necessary, and that anything that satisfies the consignee will satisfy the consignor. There is nothing in the question asked to show that it was the carrier’s duty to notify the consignor in this case.