This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In the absence of a specific provision imposing the risk of loss on one party or the other, a contract to sell a specified chattel is discharged by the destruction of such chattel without the fault of the vendor before the title passes.1 If the title to the chattel passes, the subsequent destruction does not discharge the vendee from his liability for the purchase price.2 Thus when A makes a quantity of lithographic posters for B under a contract by which B is to take them by a certain time and to pay for them then, and B does not take them or pay for them at such time, B is liable to A for the agreed price, and the fact that after such time the posters were destroyed by fire without A's fault does not discharge B from liability.3
12 Humbolt Lumber Mill Co. v. Crisp, 146 Cal. 686, 106 Am. St. Rep. 76, 81 Pac. 30.
13 See Sec. 2468.
14 Milske v. Steiner Mantel Co., 103 Md. 235, 115 Am. St. Rep. 354, 5 L. R. A. (N.S.) 1106, 63 Atl 471.
15 Milske v. Steiner Mantel Co., 103 Md. 236, 116 Am. St. Rep. 354, 6 L. R. A. (N.S.) 1105, 63 Atl. 471.
16 Voght v. Hecker, 118 Wis. 306, 95 N. W. 90.
17 Kranse v. Board of School Trustees, 162 Ind.278, 102 Am. St. Rep. 203, 65 L. R. A. Ill, 70 N. E. 264.
1 0ntario, etc., Association v. Packing Co., 134 Cal. 21, 53 L. R. A. 681, 66
Pac. 28; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Robinson v. McClaine, 98 Wash. 322, 167 Pac. 912; Wunder-lich v. Palatine Fire Ins. Co., 104 Wis. 395, 80 N. W. 471.
See, The Risk of Loss After an Executory Contract of Sale in the Com-mon Law, by Samuel Williston, 9 Harvard Law Review 106; The Sale of Goods Act of 1893 and Recent Cases, by J. Roberton Christie, 9 Juridical Review 275, and Risk in Sale in Relation* to Insurance, by W. Harvey, 4 Juridical Review 248.
2 Central Lithographing Co. v. Moore, 75 Wis. 170, 17 Am. St. Rep. 186, 6 L. R. A. 788, 43 N. W. 1124.
In the absence of a specific agreement as to the risk of loss or injury, the destruction of a chattel bailed, without the fault of the bailee, discharges him from liability to redeliver the same.4
Whether an express provision for the return of the chattel in as good condition as when it was received is discharged by the subsequent destruction of such chattel without the fault of the bailee or purchaser, is a question upon which there is a conflict of authority. In some jurisdictions a specific agreement to return the thing bailed in as good condition as when it was received, is held to render the bailee absolutely liable for the return of such thing; and its loss or destruction without his negligence does not discharge him from such obligation.5 Under a contract for the bailment of a stallion by which the bailee agrees to return it in as good condition as when received or to pay therefor, the bailee is not excused from his promise to return such animal by the death of such animal without his fault.6 In other jurisdictions such language is not regarded as imposing upon the bailee the risk of loss or injury to the chattel without regard to his own fault, and he is not liable for the destruction of the chattel or injury thereto without his fault.7 Under a contract for the sale of a stallion with the privilege to the vendee of returning it by a certain date if it proves to be without value as a breeder, and if "in as sound and healthy condition as he now is," it was held that if the stallion had a disease when sold and in its natural development it grew worse, the progress of such disease did not defeat the right of the purchaser to return it.8
3 Central Lithographing Co. v. Moore, 73 Wis. 170, 17 Am. St. Rep. 186, 6 L. R. A. 788, 43 N. W. 1124.
4 United States v. Thomas, 82 (15 Wall.) 337, 21 L. ed. 89; Seevers v. Gabel, 94 Ia. 75, 58 Am. St. Rep. 381, 27 L. R. A. 733, 62 N. W. 669; Stewart v. Stone, 127 N. Y. 500, 14 L. R. A. 213, 28 N. E. 395; Stacy v. Knickerbocker Ice Co., 84 Wis. 614, 54 N. W. 1091.
5 Barrere v. Somps, 113 Cal. 97, 45 Pac. 177, 572; Drake v. White, 117 Mass. 10; Laughren v. Banian), 115 Minn. 276, 132 N. W. 301; Grady v. Schweinler, 16 N. D. 452, 125 Am. St. Rep. 674, 14 L. R. A. (N.S.) 1089, 113 N. W. 1031.
6 Grady v. Schweinler, 16 N. D. 452, 125 Am. St. Rep. 674, 14 L. R. A. (N.S.) 1089, 113 N. W. 1031.
7 Iowa. Seevers v. Gabel, 94 Ia, 75, 59 Am. St. Rep. 381, 27 L. R. A. 733, 62 N. W. 669.
Minnesota. St. Paul & Sioux City Ry. v. Minneapolis & St. L. Ry., 26 Minn. 243, 37 Am. Rep. 404, 2 N. W. 700.
Missouri. McEvers v. The Sangamon, 22 Mo. 188.
New York. Young v. Leary, 135 N. Y. 569, 32 N. E. 607.
North Carolina. Sawyer v. Wilkinson, 166 N. Car. 497, L. R. A. 1915B, 295, 82 S. E. 840.