The opinion
STORY, Circuit Justice,
in his charge, stated the law as follows: That the statute of frauds did not apply, the contract taking place in France; and besides, that it was a contract by the plaintiffs to deliver goods, and not a sale, the goods not being in existence at the time. That Welles & Greene were the agents of the defendants, and not of the plaintiffs, which appeared from the statements of Mr. Andrews, from his direction as tp the change of the marks, and from the fact, that the shipping charges were debited to the defendants and paid by them. That the plaintiffs were legally discharged from all control over the goods after their arrival at Havre. That it was incumbent on the defendants to show, that the plaintiffs had omitted to instruct Welles & Greene to transmit the goods through Chadwick & Co.; and that, in any event, the plaintiffs should not suffer in consequence of that neglect, if the jury were satisfied, that the loss would have *1010 happened, none the less, had the instructions been complied with. That the putting of goods on board a vessel- and transmitting a bill of lading would vest the property in the consignee, though the bill of lading should not arrive, and that it is enough to show, that the usual precautions had been taken to insure its being received, without showing the fact itself. That in the absence of any invariable custom, the plaintiffs were not legally bound to send a duplicate invoice on learning, that the case No. 13 had not gone in the Formosa. That the defendants or their agents in New York were guilty of neglect, in not making search for case No. 13, among the cargo of the Frangois I., it being shown, that when goods did not accompany the invoice, they were invariably looked for in the next packet. 2
The jury found for the plaintiffs.
The case of Bryans v. Nix, 4 Mees. & W. 791. contains some remarks of Mr. Baron Parke, very strong to the point of this case when the property vested in Andrews.