(after stating the case). A sells goods to B and ships them by a common carrier to be delivered to B upon the payment of the purchase money. By the negligence of the carrier, B obtains possession of the goods without paying the money, and sells them to C, a bona fide purchaser, for value, and without notice. Can A, or his bailee,, the carrier, recover the goods from C?
This construction of the case upon appeal was conceded by the appellee, and is the most favorable to the plaintiff that can be made; for we think it very clear that if the plaintiff was holding the goods only for the payment of its freight charges, its lien could not be enforced against the innocent purchaser. As soon as the goods were delivered to the carrier, the right of property passed to the vendee, but *27 the right of possession remained in. the vendor until the price was paid. Ober v. Smith, 78 N. C., 313;. Benjamin on Sales, 1 vol., 260.
This possession he lost the negligence of his agent, and we are of the opinion that he should not be permitted to recover against the defendant, who bought of the vendee in possession, for value and without notice. Of course, if the vendor could not recover, his negligent agent, the plaintff, can have no cause of action.
We think this case falls within the principle declared in Railroad v. Kitchen, 91 N. C., 39, "that where one of two persons must suffer by the fraud or misconduct of a third person, he who first reposes the confidence, or, by his negligent conduct, made it possible for the loss to occur, must bear the loss. This doctrine is recognized in Barnes v. Lewis, 73 N. C., 138; Vass v. Riddick, 89 N. C., 6; State v. Peck, 53 Maine, 284; and in Herndon v. Nichols, 1 Salk., 289.” Had this, however, been a conditional sale, before the recent statute, an executory contract to sell, an ordinary bailment, or any other transaction which failed to pass the title, the innocent purchaser, however much he may have been misled by the possession and the apparent ownership of his vendor, would not be protected. Ballard v. Burgett, Langdell's Select-Cases, 730. The case of Millhiser v. Eardman, 103 N. C., 27, does not conflict with this view, as it was there held that, by the terms of the agreement, the title was not to pass' until certain conditions were performed.
Here the title passed, and a delivery having been made by the negligence of the vendor’s agent, the plainest priciples of justice forbid a recovery.
As to the innocent purchaser, the right of property and the right of possession are united, and his title is therefore complete.