transferred into the name of Atherton, the buyer became bankrupt, and Atherton, by means of a delivery order from the former owner, obtained possession. The Common Pleas, in an action between Atherton and the assignees of the buyer, decided that this refusal to deliver possession to the buyer, who really was then entitled to the possession, prevented Atherton's rights as unpaid seller from being divested, and that a subsequent countermand on the buyer's insolvency was valid; but in this case the refusal of the bailee was so far justified by circumstances, that it would not have been evidence of a conversion by him. His refusal to assent to the transfer of possession without orders from the person who originally deposited the goods with him was not wrongful, though his mere assent to the transfer would have been sufficient to alter the possession. In Tanner v. Scovell (a), in 1845, Boutcher and Co. sold to M'Laughlin some glue pieces, and after the arrival of the goods at the defendant's wharf, gave him the following order, addressed to the superintendent of the wharf: "Please "weigh and deliver to Mr. M'Laughlin 48 bales of glue "pieces." On receipt of this, the defendants weighed the bales and communicated the weight to Boutcher and Co., who thereupon sent to M'Laughlin an invoice stating the weight and price. Subsequently the defendants delivered five of the bales to a buyer from M'Laughlin, on his order. At a later date, in consequence of M'Laughlin's failure to pay Boutcher and Co., they ordered the defendants to deliver no more glue pieces. No transfer of the pieces had been made in the defendant's books from Boutcher and Co. to M'Laughlin, nor was any rent charged to him. The Court upheld a verdict. for the defendant. In Pearson v. Dawson (b), in 1858, Askew purchased of the defendant a portion of a cargo of sugar which had been consigned to him, per Orontes, giving his ac (a) Tanner v. Scovell, 14 L. J. Ex. 321; 14 M. & W. 28. ceptances in payment. Askew sold 20 hogsheads of the sugar to the plaintiffs, who gave their bill in payment, and gave them the following delivery order addressed to the defendant: "Please deliver to Messrs. Pearson and "Hampton, or order, 20 hogsheads of sugar ex Orontes. "James Askew." This order was handed to the defendant, who entered the plaintiff's name opposite 20 hogsheads in a book kept by him in which he entered sales and names of buyers. The sugar was lying in the defendant's name at a bonded warehouse of which the custom house officer had one key and the defendant's warehouse keeper the other. The defendant subsequently delivered 8 of the hogsheads to the plaintiffs on their delivery orders. Askew became insolvent before his bills were paid, and the defendant refused delivery of the remainder. It was held by Lord Campbell, C. J., Coleridge, Erle, and Crompton, JJ., that the plaintiffs were entitled to recover the value of the 12 undelivered hogsheads. But when the authority to give possession is conditional, the case is somewhat different. The bailee is not authorized to give possession, nor the buyer to take it until the conditions are fulfilled. It is not, therefore, to be presumed, or inferred, that the bailee consents to hold the goods for the buyer before these conditions are fulfilled, and though an express unconditional assent on his part might, and probably would, estop him from denying that the possession was in the buyer, yet it may be doubted whether even an actual delivery of possession, without fulfilling the conditions, would affect the seller. But it must be observed that conditions. are not necessarily binding, merely because they are expressed in the authority. If by the bargain the buyer is entitled to an unconditional authority to take possession, the seller cannot clog that authority with any conditions at his mere pleasure, and even if the buyer gives his consent to the conditions, that consent is revocable, unless there be some consideration for it. It is therefore necessary, not merely that the authority should be conditional, but that the conditions should be authorized by the contract. In the case of Hanson v. Meyer (a), in 1805, the contract of sale was by Meyer to Wallace and Hawes of a quantity of starch, at 61. per cwt. The seller gave a delivery order to the buyers, addressed to the Bull Porters, in these terms; "Please to weigh and deliver to Messrs. Wallace and "Hawes, all my starch." The warehouseman received the order, and so far obeyed it as to weigh and deliver a part of the starch; then Wallace and Hawes became bankrupt, and the order was countermanded, and the starch taken away by Meyer. The assignees of Wallace and Hawes brought trover against Meyer. It is now decided that by such a bargain the property is not changed (b), but at that time it was not so settled, and Hanson v. Meyer did not decide that point. The case was decided on the ground that the authority to give possession was conditional only. Lord Ellenborough said: "By the terms of the bargain formed by the brokers of the "bankrupt, two things in the nature of conditions, or pre"liminary acts on their part, necessarily preceded the absolute "vesting in them of the property contracted for. . . . The "second, which is the act of weighing, does so in consequence "of the particular terms of this contract, by which the price "is made to depend upon the weight. The weight therefore "must be ascertained, in order that the price may be known "and paid, and unless the weighing precede the delivery, it "can never for these purposes effectually take place at all. ". . . This preliminary act of weighing, it certainly never "was in the contemplation of the sellers to waive in respect "of any part of the commodity contracted for. The order to "the Bull Porters, his agents, is to weigh and deliver all his "starch. Till it was weighed, they, as his agents, were not "authorized to deliver it, still less were the buyers themselves, or the present plaintiffs their assignees, authorized to take it by their own act from the Bull Porters warehouse, "and if they could not so take it, neither can they maintain "this action of trover.... It is unnecessary to consider 66 (a) Hanson v. Meyer, 6 East, 614. (b) Ante, p. 186 et se]. "what would have been the effect of non-payment of the "price, or the right to the undelivered residue of the starch "if the case had stood merely on that ground, as it did in the "case of Hammond and others v. Anderson (a), where the "bacon sold in that case was sold for a certain fixed price, " and where the weighing mentioned in that case was merely "for the buyer's own satisfaction, and formed no ingredient "in the contract between him and the seller, though it formed "a very important circumstance in the case, being an un"equivocal act of possession and ownership, as to the whole quantity sold on the part of the buyer." The circumstance of the weighing being by the contract to precede the delivery, distinguishes this case and the cases which follow it (b), viz., Wallace v. Breeds (c), Busk v. Davis (d), and Shepley v. Davis (e), from the case of Swanwick v. Sothern, in 1839. In Swanwick v. Sothern (f) the sellers of corn had given the buyer a delivery order in the following terms:--"Deliver Mr. J. Marsden 102813 bushels of oats, Bin 40, "O. W., and you will please weigh them over and charge us "the expense." The warehousemen entered this order in their book. The Queen's Bench came to the conclusion that the contract of sale, which was not distinctly proved, was a sale of the bin of oats for a certain sum, and that the weighing of the oats was not a part of the contract; and that, therefore, the transfer in the books defeated the seller's rights. It seems impossible to doubt that the delivery order was as conditional as that in Hanson v. Meyer (g), but there the condition was a binding one as part of the bargain; in Swanwick v. Sothern (f), it was not binding on the purchaser, and he chose to waive it. In Godts v. Rose (h), in 1855, the seller, who was the plaintiff, contracted to sell oil to the defendant, to be "free (a) Hammond v. Anderson, 1 N. R. 69. (b) Ante, pp. 133, 189. (c) Wallace v. Breeds, 13 East, 522. (d) Busk v. Davis, 2 M. & S. 396. (e) Shepley v. Davis, 5 Taunt. 617. (f) Swanwick v. Sothern, 9 A. & E. 895. (g) Hanson v. Meyer, 6 East, 614. (h) Godts v. Rose, 25 L. J. C. P. 61; 17 C. B. 229. The plaintiff "delivered and paid for in 14 days by cash." then gave the wharfinger authority to transfer certain casks of oil into the defendant's name, and received from the wharfinger a notice addressed to the defendant, in which the wharfinger stated that he had transferred the oil into the defendant's name. The plaintiff then sent a clerk to the defendant with the notice, an invoice, and a receipt for the price, with directions to exchange them for a cheque. The defendant obtained possession of the wharfinger's notice of transfer, but refused to give a cheque on the ground that payment was to be made in 14 days. The clerk then went to the wharfinger and countermanded the order. Subsequently however, the wharfinger delivered the oil to the defendant, thinking that the property had passed to him. The Court, consisting of Jervis, C. J., Williams, Crowder and Willes JJ. held the meaning of the contract to be, that the seller might deliver the oil at any time within 14 days, and might at the time of delivery require payment, and as the jury had found that the clerk had no intention to part with the property, the plaintiff was entitled to recover. In Cooper v. Bill (a), in 1865, timber lying on a wharf had been sold by the defendants to Gurney, whose agent measured the timber, numbered each tree, and marked it with Gurney's initials, and then proceeded to square the timber. On the insolvency of Gurney, the defendants removed the timber to a field in their occupation, and declined to give it up to the plaintiffs, Gurney's assignees. But the Court held that there had been a delivery of the goods to the buyer. We shall now return to the subject of stoppage in transitu, properly so called, to which this digression is by no means irrelevant. The transitus, as its name imports, is whilst the goods are on their passage from the seller to the buyer, or, as has been already said, when they are in the hands of one who neither holds the possession by a contract of bailment made (a) Cooper v. Bill, 34 L. J. Ex. 161; 3 H. & C. 722. |