Smith, the seller, is liable for the loss. Under the Civil Code: A thing is considered as lost when it: Perishes; Goes out of commerce; or Disappears in such a way that its existence is unknown or cannot be recovered However, in an obligation to deliver a generic thing, the loss or destruction of anything of the same kind does not extinguish the obligation. Civil Code further provides that in case of loss, unless otherwise agreed, the goods remain at the seller's risk until the ownership therein is transferred to the buyer, but when the ownership therein is transferred to the buyer the goods are at the buyer's risk whether actual delivery has been made or not, except that: Where delivery of the goods has been made to the buyer or to a bailee for the buyer, in pursuance of the contract and the ownership in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery. Where actual delivery has been delayed through the fault of either the buyer or seller, the goods are at the