Seggerman Bros.," for 1770/50 lb. boxes of evaporated apples; car No. 160,527. Thereafter the defendant delivered to the plaintiffs an invoice for 1,200 boxes, accompanied by an order addressed to the delivery clerk in their own place of business, which called for the delivery of 1,200 boxes evap. apples, "Ex car U. P. 160,527." Upon receipt of these documents, the plaintiffs paid to the defendant $13,377, the price at which the apples were billed upon the invoice after deducting a discount of 2 per cent, to which they were entitled under the terms of their contract. The apples shipped to New York by Rosenberg Brothers & Company were seized by the United States government officials before they arrived in New York. The circumstances leading up to such seizure are not disclosed, and are not relevant to any question before us. It is sufficient that as a result the apples shipped from California never arrived in New York, and the plaintiffs have never received 1,200 boxes of apples for which they have paid. They have now brought this action to recover the price so paid, and the defendant has until now successfully resisted such recovery upon the plea that under the terms of the contract any loss must fall upon the buyer. The contract provides that the defendant's liability is limited to the "delivery of actual goods" received by it under the contract with Rosenberg Brothers & Company. It has received from Rosenberg Brothers & Company 1,200 boxes of apples as part of a total shipment of 1,770 boxes. These apples have been seized. All that remains is a possible claim against some party. If the defendant has complied with its contract, if it has made delivery of the goods it has received, if title has passed to the plaintiffs, then the plaintiffs were bound to pay the agreed price, and there has been no failure of consideration for such payment, and there can be no recovery under the contract. On the other hand, if the defendant's obli gation to transfer title to the apples it received still remained open, then its contract was entirely unperformed, and, upon failure to perform, even though performance was frustrated without its fault, restitution of the consideration received still remains. Sokoloff v. National City Bank, 239 N. Y. 158, 37 A.L.R. 712, 145 N. E. 917. covered by for when title Although in form the agreement between the parties is one of present sale of specific goods, it is in fact a contract to sell goods which were then unascertained. The defendant had not yet received from Rosenberg Brothers & Company the 1,200 boxes which it agreed to sell to the Sale of fruit plaintiffs, but had mer contractmerely a contract for the future delivery of that number of boxes. Having no property in ascertained goods, it could transfer no property. Only when the goods were delivered to the plaintiffs by the defendant, or appropriated to the plaintiffs' contract with the plaintiffs' consent, would property in the goods and the consequent risk of loss pass to the plaintiffs. This was the evident intention of the parties, as disclosed by the contract, and is in accordance with the rules for ascertaining intention as provided in § 100, Personal Property Law (Consol. Laws, chap. 41). Undoubtedly, the parties contemplated that, when Rosenberg Brothers & Company delivered 1,200 boxes of apples to a carrier for the purpose of transmission to the defendant, and property in the apples so delivered passed to the defendant, the defendant would immediately transfer the property to the plaintiffs. The plaintiffs undoubtedly consented in advance to the appropriation of the 1,200 boxes of apples the defendant received under his contract with Rosenberg Brothers & Company to its contract with them, for the contract required such appropriation, but until such appropriation was made the risk of loss did not pass to the plaintiffs. Both the contract for the purchase of the (240 N. Y. 118, 147 N. E. 607.) apples from Rosenberg Brothers & Company, and the contract for the sale of the apples to the plaintiffs, provided for shipment in September or October. Both contained a clause: "Responsibility. Notwithstanding shipped to seller's order, goods are at risk of buyer from and after delivery to carrier, and buyer hereby assumes responsibility as to shortage, loss, delay, or damage in transit upon issuance by carrier of clean bill of lading or shipping receipt." Under both contracts there was a consent in advance to appropriation of goods to the contract, by delivery of goods to the carrier for transmission to the buyer in accordance with the terms of the contract, and appropriation made in accordance with such consent would pass title and attendant risk of loss; but in the -necessity of appropriation to contract. present case there has been no such appropriation by the defendant of any ascertained goods to the plaintiffs' contract. The delivery to the carrier which would transfer responsibility to the buyer was only such delivery as the seller was authorized to make, and the "clean bill of lading or shipping receipt" referred to in the contract was a shipping document issued upon such delivery. A delivery by a seller to a carrier, even for the purpose of transmission to the buyer, of a quantity greater than the amount called for -delivery to carrier-excess quantity. by the contract, does not constitute an appropriation of goods to the buyer's contract which constitutes a delivery to the buyer sufficient to pass property in any of the goods. "In order for the property to so pass, the seller must have acted in conformity with authority given by the buyer." Williston, Sales, 2d ed. § 278. Here the defendant was authorized to ship to the plaintiffs 1,200 boxes, which under the contract were referred to as a "specific car of boxes." The parties contemplated a definite appropria tion of a particular 1,200 boxes to the contract. The defendant never appropriated to this contract any particular 1,200 boxes; the boxes it was required to deliver still remained part of a mass, and were shipped, not as a "secific car," but as a part of a carload. They were not delivered to the carrier for transmission to the plaintiffs, but for transmission to the defendant. Although under plaintiff's contract shipment was to be made "order, notify," no shipping document was ever obtained under which the plaintiffs were entitled to notice of arrival. Concededly, the plaintiffs could obtain no title to any particular boxes unless the boxes were separated and some appropriated to plaintiffs' contract by virtue of delivery order issued by defendant to its own delivery clerk, and, when the loss occurred, all that remained was a claim against some party who may have been guilty of some wrong, and even that claim has never been transferred to plaintiffs, but, when the loss occurred, the defendant made the claim for the benfit of all parties who might have a right to any share in the whole mass of apples contained in the car. The plaintiffs never agreed to purchase an undivided share in a mass; they never authorized shipment of 1,200 boxes of apples as part of a mass, or even as part of a pool car, for their contract refers to a specific carload and to 1,200 boxes of apples to be ascertained and appropriated before shipment, and no title to any apples has ever passed to the plaintiffs. We have not overlooked the fact that plaintiffs made payment upon presentation, not of a bill of lading, but of a delivery order, and that two months thereafter, when they discovered that the apples were shipped under a bill of lading for 1,770 boxes, they still evinced a willingness to accept the bill of lading for the larger amount as a sufficient delivery. We do not think these cir -effect of acceptance of delivery order. cumstances can be regarded as sufficient to place upon the plaintiffs the risk of loss without delivery of a bill of lading or transfer of title to them. These circumstances are not open to the construction that the plaintiffs were willing to assume a risk of loss upon goods to which they never obtained title, or to substitute for a right to the delivery of apples as called for by the contract a beneficial interest as tenants in common with others to a claim for damages, title to which right to return of consideration. still remained in the seller. They paid a consideration for the transfer of title to them, and, when the transfer of title became impossible, they became entitled to a return of the consideration. The judgment below should be reversed and judgment granted in favor of the plaintiffs, with costs in all courts. Hiscock, Ch. J., and Cardozo, Pound, McLaughlin, Crane, and Andrews, JJ., concur. Judgment accordingly. ANNOTATION. Delivery to carrier of quantity of goods greater than that called for by contract as passing title. The rule as to the quantity of goods which may be delivered as a performance of a contract of sale, and the right of the buyer as to acceptance, has been stated as follows in 23 R. C. L. 1420: "The rule has been laid down that a seller does not comply with his contract by the tender or delivery of either more or less than the exact quantity contracted for, and usually the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the seller has no right to insist on the buyer's acceptance of all, or on the buyer's selecting out of a larger quantity delivered; and where a greater quantity was shipped by carrier to the buyer than the contract called for, it has been held that the buyer was entitled to reject the entire shipment." It would seem to follow, therefore, that a delivery by the seller to the carrier of a greater quantity of goods than the contract calls for does not of itself pass title to the goods to the seller. This view was taken in the reported case (LAMBORN v. SEGGERMAN BROS. ante, 1540), wherein it is declared that such a delivery to the carrier does not amount to such an appropriation of the goods to the buyer's contract as to constitute a delivery to the buyer sufficient to pass the property in the goods. In Barton v. Kane (1863) 17 Wis. 38, 84 Am. Dec. 728, the action was to recover the price of cigars and tobacco alleged to have been sold and delivered by the plaintiff to the defendant. The evidence showed that the goods had been shipped to the defendant, who refused to accept them on the ground that they were inferior in quality to the samples shown, and also that a greater quantity had been sent than was ordered. The court said: "The motion for judgment of nonsuit should have been granted. The cigars forwarded exceeded the quantity ordered. The order was for 5,000, but the plaintiff sent 5,625. This was no compliance with the order, and imposed no obligation on the defendant, without showing an acceptance in fact by him after the cigars were received, the burden of which was upon the plaintiff. To constitute a delivery to the carrier a delivery to the consignee, so as to pass the title and make the consignee liable for goods sold and delivered, the goods must correspond in quantity as well as quality, with those named in the order. . . There can be no pretense that the 625 extra cigars were sent out of an abundance of caution, and to insure a scriptural compliance with the order. They were sent to fill up the case, and the defendant was charged with their price. To entitle him to recover under the circumstances, the plaintiff should have shown that the defendant actually received and accepted the cigars sent, upon the terms indicated in the plaintiff's letter notifying him of the consignment. . . Where he knowingly sends more or less goods than are ordered, he is guilty of an intentional violation of the contract which he undertakes to perform, and his conduct savors of bad faith; and it would seem that he has no right to presume that the purchaser will accept, or to rely on notice of refusal. He must show an actual acceptance, by proving either that the purchaser retained and used the goods, or that he did some other act from which his assent may be presumed. The nonsuit, therefore, at the time it was moved, was proper and should have been granted." In Ruhl v. Corner (1884) 63 Md. 179, referred to by way of analogy, it appeared that a carload of flour had been shipped to one who had not ordered it. Subsequently the shipper attempted to change the shipment and to send it to another firm. Owing to some neglect, the change was not made, and the flour was delivered to the first consignee. The question involved was, Who was entitled to the flour? The court, in passing on the question, said: "It is the well-settled law that the delivery of goods to a common carrier for one who has purchased and who has ordered them is a delivery to the purchaser, though it does not amount to an acceptance of them. 1 Benjamin, Sales, pp. 182 and 195. But it is equally well settled chat where goods have been shipped to one who has not ordered them, title does not pass to the consignee by delivery to the carrier, and the right to change the consignment and destination during the transportation remains in the shipper; and this is so for the manifest reason that there is a want of the essential element of mutual assent to constitute a contract of sale. So that in all cases where goods are shipped upon the ac count of, and at the risk of, the shipper, this right remains in him." In an early case in New York, however, the court seemed inclined to the view that, under the circumstances shown, title had passed, though a greater quantity of goods had been shipped than were ordered. Downer v. Thompson (1843) 6 Hill (N. Y.) 208, reversing (1841) 2 Hill, 137, wherein it appeared that the defendant had ordered 250 barrels of cement from the plaintiff, and that the latter had shipped 260 barrels by boat, which the defendant refused to accept, but not on the specified ground that the shipment was more than he had ordered. The action was to recover for 250 barrels. In the court below, the plaintiff was nonsuited, it being held that, had there been an exact compliance with the terms of the order, the property would have passed on delivery to the carrier; and then the plaintiff might have recovered as for goods sold and delivered; that in general a delivery to a carrier for the account and risk of the consignee is in law a delivery to the latter, but that a sale of goods is incomplete and passes no title to the vendee, so long as anything remains to be done by the vendor, such as weighing, measuring, or counting out of a common parcel. On appeal, however, the judgment was reversed, it being declared that the question should have been submitted to the jury. It was said by Strong, Senator: "If the plaintiff forwarded the 260 barrels as and for 250 barrels, in order that no dissatisfaction might exist as to the quantity, or for any other reason, he would be entitled to recover the value of the 250 barrels; and whether he did so was a proper question for the jury to decide. On the other hand, if the 260 barrels were not sent as a mere compliance with the order, the defendant was not bound either to make a selection of 250 barrels out of the larger number, or to take the extra 10 barrels and pay for them; and should a jury find that such was the fact, as the sale would then be incomplete as well for 250 as for 260 barrels, the defendant would be entitled to their verdict. The plaintiff is entitled to have this question submitted to a jury, and therefore the judgment of the supreme court should be reversed." In a dissenting opinion it was said by Lawrence, Senator: "If the plaintiff had delivered 250 barrels of cement on board the canal boat at Chittenango, according to the terms of the defendant's order, the title would have immediately passed; for it might then have been contended with propriety that the carrier was the agent of the defendant. But, instead of the 250 barrels, the plaintiff forwarded a larger quantity of cement, viz., 260 barrels, estimating by count, and 270, estimating by weight; thus refusing, in legal effect, at least, to comply with the defendant's order, and proposing a different arrangement, The carricr was not the defendant's agent for the purpose of consenting to this proposition, and, as the defendant himself has not consented to it, the title to the cement remains in the plaintiff to this day." H. C. J. |