Sims v. . R. R. , 130 N.C. 556 ( 1902 )

Laws 1901, ch. 9, sec. 52, provides that "Every manufacturer of sewing machines, and every person or persons or corporation engaged in the business of selling the same in this State shall, before selling or offering for sale any such machine, pay to the State Treasurer a tax of $350 and obtain a license," and makes the failure to do so a misdemeanor.

By the "facts agreed" in this case it appears that Sears, Roebuck Co., of Chicago, have not paid said tax nor obtained a license, (557) and that prior to this transaction they had made several deliveries at various points in North Carolina on the lines of other interstate railroads running into this State, and that all these shipments, like the one here in question, were made on bills of lading providing that the sewing machine should not be delivered till it was paid for by the person named as consignee.

Thus the title could not pass till such payment was made to the common carrier, acting as agent of the shipper. This was an executory contract in Illinois, but there was no sale till the payment was made, and thus the sale was executed in North Carolina, and the shippers are liable to the above tax. The title to this machine having remained in the shipper until such payment (Tiedeman on Sales, secs. 95, 97), the machine was properly levied on before such payment for the license tax due by the shippers. Laws 1901, ch. 9, sec. 101 (last paragraph of section).

The well-known case of O'Neal v. Vermont, 144 U.S. 324, is decisive of the point. There, in the shipment of liquor from New York into Vermont, c. o. d., it was held that the completed executory contract was in New York, but the completed sale was in Vermont — as here.

Ober v. Smith, 78 N.C. 313; S. v. Groves, 121 N.C. 632, relied on by defendants, were cases of an unconditional delivery to the common carrier, and of course the title passed to the consignee upon delivery to the carrier, S. v. Wernwag, 116 N.C. 1061, 28 L.R.A., 297, 47 Am. St., 873, is much like the present case.

No error.

Cited: Collier v. Burgin, post, 635.

Reversed: On writ of error, R. R. v. Sims, 191 U.S. 441.

(558)