3. Delivery to a carrier.—If the seller is, under the contract, authorized or required to send the goods to the buyer; his obligation is fulfilled by delivering them to a carrier who may or may not be named by the buyer, but who is nevertheless deemed to be the agent of the buyer for the purpose of transmission. Hence delivery to the carrier is as a rule delivery to the buyer. There can be no doubt about it if the deliv ery is made to a carrier who is named by the buyer. This position will not be altered by the fact that the seller makes a contract with the carrier; he will be held to have made it on behalf of the buyer, even tho he pays the carrier. His contract with the carrier must be reasonable, having regard to the na ture of the goods, the necessity for quick transport, the necessity for protection against the weather, and so on.
Under the English law, at least, if the seller omits to exercise such care in instructing and making his contract with the carrier, and as a result the goods are lost or damaged in transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or he may sue the seller for the damages he has suffered. Delivery to a carrier of the goods con tracted for, to be shipped by a method different from that provided by the contract, is not such a delivery as is contemplated by the parties. Thus, where goods were sold by the plaintiffs to the defendant, and by the contract between them the goods were to be shipped by freight, and were handed by the plaintiffs to a railway company, to be shipped by express to the defendant, and were not in fact delivered to him, it was held that the defendant was not liable for the price of the goods. The fact that the goods were shipped by a faster means of transportation, which might be for the benefit of the defendant, but with out his knowledge or consent, could not change the rights of the parties under the The presumption that the carrier is the buyer's agent may be rebutted; for example, if the seller re serves the right of disposal of the goods by taking a bill of lading to the order of himself or a third person. in order to insure payment of the price, the bill of lading must be indorsed by the seller or such third person, and this constitutes delivery, but not to the purchaser. In this case the carrier would be deemed to be the agent of the seller, and if the goods were lost or damaged in transit, the loss would be upon the seller. If the seller, in making a sale of goods, should undertake that he would make the delivery himself at some place other than that where they are when sold, the carrier is the seller's agent, and the risks of car riage are assumed by the latter. Tho the carrier
may be the agent of the seller, the buyer takes the risk of deterioration in the goods, which is necessarily incident to the course of transit, because such risks would arise whether the carrier were the agent of the buyer or of the seller. Thus in an English case it was held that where hoop-iron was sold in Staffordshire, deliverable in Liverpool in the winter, and the iron was rusted and unmerchantable when delivered in Liverpool, the seller had made a good delivery, upon proving that this deterioration was the necessary re sult of the transit, and that the iron was bright and in good order when it left 4. Time of delivery.—If the seller is bound to make delivery of the goods, either to a carrier or to the buyer direct, delivery must be made at the time fixed in the contract. If no time is fixed, delivery must be made within a reasonable time.
What may be a reasonable time will depend upon the circumstances in each case. If it is agreed that delivery is to be made at a time to be fixed later, as, for example, by the buyer, the seller will be entitled to await notice from the buyer, calling for delivery. If a time for delivery has been fixed, then the buyer may refuse to take delivery either before or after such time. If the contract provides for delivery "imme diately," "forthwith," or "as soon as possible," a rea sonable time will be allowed for delivery. What may be a reasonable time will be a question of fact. If A makes a contract with B to buy certain goods, which are to be delivered at some time between the 1st and the 30th of the next month, B may deliver the goods on the 1st or the 30th day of the month, or on any intervening day.
If the contract does not state the hour at which delivery is to be made, it must be made at a reason able hour. Delivery cannot be demanded or be made at an unreasonable hour; it should be made or de manded as a rule during business hours. It has been laid down that if delivery is to be made at a specified place, where the buyer must be to receive the goods, the delivery should be made before sunset. The rule is not a hard and fast one, however, so that if the buyer happened to be at the place designated for delivery, and the goods could be easily examined, a tender of delivery, tho made at night, would probably be suf ficient.