## Facts

- A buyer ordered two rooms of custom-made furniture from a manufacturer-seller.
- The seller completed the furniture and sent invoices stating the goods were ready for shipment.
- The buyer paid the full price.
- At the buyer’s request, the seller shipped one room immediately and held the second room for later shipment.
- Before the second room was shipped, a fire at the seller’s premises destroyed the undelivered furniture.
- The buyer’s insurer reimbursed the buyer and, as subrogee, sued the seller to recover the loss, asserting the seller bore the risk of loss while the goods remained on its premises.

## Issues

1. Under the UCC, whether risk of loss for identified custom goods passes to the buyer when the seller tenders the goods as ready for shipment and the buyer requests the seller hold part of the goods for later shipment.
2. Whether the seller’s continued possession after tender, at the buyer’s request, makes the seller a bailee such that the buyer bears the casualty loss occurring before shipment.

## Decision

- Judgment for the seller.
- The court held the risk of loss for the second room of furniture had passed to the buyer before the fire.
- Because the seller was holding the goods at the buyer’s request after tender, the seller was not liable to refund the price or reimburse the buyer’s insurer.

## Legal Principles

- Risk of loss for goods cannot pass until the goods are identified to the contract; completion and identification of custom goods satisfy this requirement.
- Under UCC risk-of-loss rules (including UCC § 2-509), tender of delivery and the parties’ shipping arrangement control allocation of casualty loss.
- When a seller has completed and tendered identified goods and the buyer elects to delay shipment for the buyer’s convenience, the seller’s continued possession may be treated as storage for the buyer (bailment), placing risk of loss on the buyer despite the seller’s physical custody.
- Physical location of the goods at the time of casualty is not dispositive when the contract and conduct show the buyer had accepted tender and controlled the timing of shipment.

## Conclusion

The court allocated the fire loss to the buyer because the seller had completed and tendered the custom furniture as ready for shipment and retained the undelivered portion only because the buyer asked the seller to hold it for later shipment, making the seller’s role that of a bailee rather than a party still bearing contract risk.


Silver v. Wycombe, Meyer & Co., 477 N.Y.S.2d 288 (Civ. Ct. City of N.Y. 1984)