The opinion of the court was delivered by

Upon the case stated by the District Court its judgment should be affirmed. The parties while holding the relation of principal and agent with respect to the title to the goods dealt at arms’ length in reference to the agreement between themselves regarding the manner in which the settlement should be made and the unsold goods returned. Part of this agreement was that the defendants should return such goods and bear the expense of such return. If the parties had agreed as to the method of making such return and the goods had then been lost in transitu, a different question might arise, but here the defendants for their own pecuniary benefit, and without the concurrence of the plaintiff, selected the mode of carriage they desired and which the plaintiff did not desire; hence the District Court properly held that the loss must fall upon the defendants, whose duty it was under the contract to return the goods to the plaintiff if they would be credited with, their value.

For this purpose the railroad company was in no sense the agent of the plaintiff to accept delivery, but, on the contrary, was clearly the agency selected by the defendants to make delivery.

The judgment of the Second District Court of Newark is .affirmed.