1927Present; Schneider J, and Maartensz A.J.

 OTHMAN v. JINADASA,

485.-D. C, Colombo, 190.

Sale of goods-Delivery conditional on payment-Mate's Receipt sent by value-payable post-Risk of loss in transhipment.

Where a seller shipped goods to a buyer and sent the male's receipt by value-payable post, thereby intending to make the
delivery of goods conditional on payment,-

Held, that the property in the goods did not pass to the buyer on delivery to the carrier, and that the risk of loss in transport fell on the seller.

APPEAL from a judgment of the District Judge of Colombo. The plaintiff sued the defendant for the recovery of a sum of Rs. 533.21, the value of goods sent by the plaintiff from Colombo in the ss. " Lady McCallum " to the defendant at Trincomalee. The steamer was wrecked and the goods lost. It was proved that the course of business adopted was that the plaintiff should send a document called the mate's receipt by value-payable post to the defendant, so that the latter was unable to obtain delivery of the goods until he had paid their full value. The defendant resisted the claim on the ground that the plaintiff had consigned the goods at his own risk. The learned District Judge held in favour of the plaintiff.

H. V. Perera (with L. A. Rajapakse) for defendant, appellant.- Section 18 of the Sale of Goods Ordinance prescribes the rules for ascertaining the intention of the parties as to when the property in the goods is to pass. But here there was no " unconditional appropriation " of the goods to the contract. The property in the goods would not pass until the appellant paid the value of the goods and took delivery of the mate's receipt, which had been sent by V. P. P. The risk therefore was with the person in whom the title was at the time the " Lady McCallum " went down, i.e., with the plaintiff. The appellant is therefore not liable for the value of the goods.

Counsel cited 25 Hals. p. 181; Bryans v. Nix 1[(1839) 4 M. & W. 775.]; and Schuster c. Mc.Kellar.2 [(1857) 7  E. &  B. 704.]

N. K. Choksy, for plaintiff, respondent.-As this was a sale at prices for delivery at the plaintiff's stores, there was an unconditional appropriation of goods to the contract, when the plaintiff selected

the particular articles for shipment to the defendant. The property therefore passed to the defendant at that time. Or else, the property passed at the time the plaintiff delivered the goods on board and got the mate's receipt signed, giving the name of the defendant as the consignee.

Even if the property had not passed, the defendant must be deemed to have " agreed " to take the risk (section 20, Sale of Goods Ordinance). Although ordinarily the risk passes with the property it is possible to sever the two, and for the risk to be in the buyer whilst the property remains in the seller.

Where the buyer nominates the mode of conveyance and the seller follows the buyer's instructions, the risk is with the buyer. Here the buyer requested the seller to send the goods by steamer leaving on a particular date, which was the scheduled date of sailing of the " Lady McCallum," and that was the only ship plying between Colombo and Trincomalee.

Delivery to a carrier is delivery.....to the buyer, more especially when the carrier is one " specially pointed out by the consignee. " Dunlop v. Lambert 1[(1839) 6 Cl, and Firm at pp. 620-621.] Chalmers' Sale of Goods, p. 198; Benjamin on Sale (6th ed.), p. 452 et s/eq. and p. 459; Stock v. Inglis 10 App. Case 263.

There would have been a " reservation of the right of disposal " if the plaintiff had taken the mate's receipt in favour of himself or his order. But here the plaintiff took it in favour of the defendant. Once the mate's receipt was posted the plaintiff had no control over it. That was only a mode of recovering payment.

July 25, 1927. SCHNEIDER J.-

In this action the plaintiff sued the defendant for the recov