(4.) If a part of the goods has been delivered, the residue may be stopped, except where the circumstances show that the delivery of the part was in performance of an agreement or intention to deliver the whole." Section 59. Exercise of the Right to Stop.-(1.) The unpaid seller may exercise his right of stoppage in transitu either by obtaining actual possession of the goods or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal, but in the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. (2.) When notice of stoppage in transitu is given by the seller to the carrier or other bailee in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller, and the expenses of such redelivery must be borne by the seller. If, however, a negotiable document of title representing the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver, or justified in delivering, the goods to the seller unless such document is first surrendered for cancellation. No particular form or mode of exercising the right of stoppage in transitu is necessary. The seller may stop the goods, 67. McElwee v. Metropolitan Lumber Co., 69 Fed. 302; Masters v. Barreda, 59 U. S. (18 How.) 489; Secomb v. Nutt. 53 Ky. (14 B. Mon.) 261; Johnson v. Eveleth, 93 Mo. 306; Buckley v. Furniss, 17 Wend. (N. Y.) 504; Jeffris v. Fitchburg Ry. Co., 93 Wis. 250, 33 L. R. A. 351; Ex parte Cooper, 11 Ch. D. 68 C. A.; Tanner v. Scovell, 14 M. & W. 28; Dixon v. Yates, 5 B. & Ad. 313; Jones v. Jones, 8 M. & W. 431; Kemp v. Falk, 7 App. Cas. 573; 2 Mechem on Sales, § 1602; Benjamin on Sales, § 857. "A delivery of part of the goods does not operate as a constructive delivery of the whole, unless the parties intended it so to operate, and it rests with the party, who relies on the part delivery as a constructive delivery of the whole, to prove such intention. This proof may be estab lished (1) from the circumstances under which the delivery took place, e. g., the purchaser may at the time express his intention to take the whole of the goods, although he actually takes only a part; or (2) perhaps, in some cases, from the intrinsic nature of the goods delivered, as e. g., where the cargo consists of an entire machine, and an essential portion of it is delivered to the purchaser." Benjamin on Sales, § 857. 1. Frame v. Ore. Liquor Co., 48 Ore. 272; 2 Mechem on Sales, § 1605; Benjamin on Sales, § 859; 1 Jones on Liens, § 888. 2. Any agent having a general au 1. By regaining actual possession, which he may do, it is said, so highly is the right favored in law, by any means not criminal.' 2. By giving notice to the carrier or other bailee of his claim.5 The notice need not be in any particular form, but a written notice describing the goods, directing their stoppage, and assigning the grounds upon which it is asserted, is the usual and appropriate mode. 10 Such notice may be given (a) to the person actually in possession of the goods; or, (b) to the principal. When given to the 11 thority, or specially authorized, may exercise the right of stoppage on behalf of his principal. Reynolds v. B. & M. Ry. Co., 43 N. H. 580; Bell v. Moss, 5 Whart. (Pa.) 189, 206. Also an unauthorized agent, if ratified by the principal before the buyer or his assignee has obtained possession. Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 12. But if not ratified until the buyer has obtained possession, the stoppage is not effective. Bird v. Brown, 4 Exch. 786; Davis v. McWhirter, 40 U. C. Q. B. 598; Dibbins v. Dibbins (1896), 2 Ch. D. 348. 3. Snee v. Prescott (1743), 1 Atk. 245, 250; Whitehead V. Anderson (1842), 9 M. & W. 518, 534. It is not necessary for the seller to take actual possession of the goods in order to complete the stoppage and make it effective. "Latterly, it has been held that notice to the carrier is sufficient and that if he deliver the goods after such notice, he is liable." Litt v. Cowley, 7 Taunt. 169. the same effect is Rucker v. Donovan, 13 Kan. 251; Newhall v. Vargas, 13 Me. 93; Reynolds v. B. & M. Ry. Co., 43 N. H. 580. To 4. 2 Mechem on Sales, § 1605; Benjamin on Sales, § 859. 5. Litt V. Cowley (1816), 7 Taunt. 169, 170; 2 Mechem on Sales, § 1606; Benjamin on Sales, § 859; 1 Jones on Liens, § 888. 6. Bloomingdale v. Memphis, etc., Ry. Co., 74 Tenn. (6 Lea) 616; 2 12 Mechem on Sales, § 1606; Benjamin on Sales, § 859. A letter from the seller to the carrier's agent in actual possession directing the stoppage of the goods, which it described, and saying that the buyer's property had been attached, is sufficient notice. Jones v. Earl, 37 Cal. 630. 7. Allen v. Maine Cent. Ry. Co., 79 Me. 327; Clementson v. Grand Trunk Ry. Co., 42 U. C. Q. B. 263. 8. The seller need not demand that the goods be delivered to himself. Reynolds v. Boston & Maine Ry. Co., 43 N. H. 580, 588; Bell v. Moss, 5 Whart. (Pa.) 189, 207; Northey v. Field, 2 Esp. 613. 9. 1 Jones on Liens, § 895. Assigning the reasons for the exercise of the right in the notice is not indispensible. Allen v. Maine Cent. Ry. Co., 79 Me. 327. Nor is it necessary for the seller to prove that conditions giving him the right to stop exist. 1 Jones on Liens, § 895. 10. Jones v. Earl, 37 Cal. 630; Rucker v. Donovan, 13 Kan. 251; Newhall v. Vargas, 13 Me. 93; Allen v. Maine Cent. Ry. Co., 79 Me. 327; Stanton v. Eager, 33 Mass. (16 Pick.) 467; Atkins v. Colby, 20 N. H. 154; Reynolds v. B. & M. Ry. Co., 43 N. H. 580; Bloomingdale v. Memphis, etc., Ry. Co., 74 Tenn. (6 Lea) 616; Litt v. Cowley, 7 Taunt. 169; 2 Mechem on Sales, § 1606; Benjamin on Sales, § 859; 1 Jones on Liens, § 888. principal not in actual possession, it must be given at such time and under such circumstances that he may, by the exercise of reasonable diligence, prevent a delivery to the consignee." 13 3. Upon receipt of notice to stop the goods, the carrier or other bailee must redeliver them to the seller, or in accordance with his directions.14 The seller must pay the expenses of such redelivery, including 11. Rucker v. Donovan, 13 Kan. 251; 2 Mechem on Sales, § 1609; Benjamin on Sales, § 860; 1 Jones on Liens, §§ 890, 891. Notice to the agent in actual custody is notice to the carrier. Bierce v. Red Bluff Hotel Co., 31 Cal. 161; Jones v. Earl, 37 Cal. 630; Bloomingdale v. Memphis, etc., Ry. Co., 74 Tenn. (6 Lea) 616. A station agent in control of goods received by the carrier at that station is the proper agent upon whom to serve notice. Poole v. R. R. Co., 58 Tex. 134, 139. 12. Rucker v. Donovan, 13 Kan. 251; Allen v. Maine Cent. Ry. Co., 79 Me. 327, 1 Am. St. Rep. 312, note; Mottram v. Heyer, 5 Denio (N. Y.), 629; Whitehead v. Anderson (1842), 9 M. & W. 518. 13. 2 Mechem on Sales, § 1609; Benjamin on Sales, § 860; 1 Jones on Liens, § 893. To make a notice effective as a stoppage in transitu, it must be given to the person who has the immediate custody of the goods; or if given to the principal whose servant has the custody, it must be given at such a time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to a consignee; and to hold that a notice to a principal at a distance is sufficient to revest the property in an unpaid vendor and render the principal liable in trover for a subsequent delivery by his servants to the vendee when it was impossible from the distance and want of means of communication to pre vent that delivery would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery." Whitehead V. Anderson (1842), 9 M. & W. 518. See also Litt v. Cowley, 7 Taunt. 169; Bethell v. Clark 20 Q. B. D. 615, 19 Q. B. D. 560; Ex parte Falk, 14 Ch. D. 446, 455, 7 App. Cas. 585; Ex parte Watson, 5 Ch. Div. 35 C. A.; Phelps v. Comber, 29 Ch. D. 813 C. A. Whether notice to the consignee and not to the master or owner of a ship is effectual, quaere. Phelps v. Comber, 29 Ch. D. 813 C. A. Demanding bills of lading from the ship-owner who has retained them in his position as security for unpaid freight is an effective exercise of the right of stoppage in transitu. Ex parte Watson, 5 Ch. D. 35 C. A. 14. The Tigress (1863), 32 L. J. Adm. 97, 102; 2 Mechem on Sales, § 1611; Benjamin on Sales, § 861; 1 Jones on Liens, §§ 897, 899. A bailee delivers goods at his peril and is bound to decide for himself between conflicting claimants. He is liable in trover if he delivers to the wrong person, but can protect himself by taking an indemnity or bringing an action of interpleader. 1 Jones on Liens, § 896; Benjamin on Sales, § 861; Blackburn on Sales, 262; The Tigress (1863), 32 L. J. Adm. 97, 102; Litt v. Cowley (1816), 7 Taunt. 169, 170; Pontifex v. Midland Ry. Co. (1877), 3 Q. B. D. 23; Wilson v. Anderton, 1 B. & Ad. 450; Batut v. Hartley, L. R. 7 Q. B. 594. If the carrier wrongfully restores goods to the seller, he is liable to the the carrier's lien for freight of the particular shipment stopped ;15 but not a general balance due the carrier from the buyer." If a negotiable document of title has been issued by the carrier or other bailee representing the goods to be stopped, he is not obliged to deliver, or justified in delivering the goods, unless such document is surrendered for cancellation.17 Section 60. When and How Resale May Be Made.-(1.) Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should made default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or having stopped the goods in transitu may resell the goods, and he shall not thereafter be liable to the original buyer upon the contract to sell or the sale, or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. (2.) Where a resale is made, as authorized in this section, the buyer acquires a good title as against the original buyer. (3.) It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer, but where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made. (4.) It is not essential to the validity of a resale that notice of buyer for conversion. Taylor v. G. E. Ry. Co. (1901), 1 K. B. 774. The seller has also a remedy by injunction. Schotsmans V. Lanc. & York. Ry. Co. (1867), L. R. 2 Ch. App. 332, or by arrest of the ship if the goods be in the hands of the ship-master. The Tigress (1863), 32 L. J. Adm. 97. 15. 2 Mechem on Sales, § 1610; 1 Jones on Liens, § 900. The carrier's lien for freight and other charges on the particular shipment is superior to the seller's right of stoppage in transitu. Potts v. New York, etc., R. R. Co., 131 Mass. 455; Hays v. Mouille, 14 Pa. St. 48; Pa. Ry. Co. v. American Oil Works, 126 Pa. St. 485. 16. Macon & Western R. R. v. Meador, 65 Ga. 705; Potts v. N. Y., etc., Ry. Co., 131 Mass. 455; Oppenheim v. Russell, 3 B. & P. 42; Jackson v. Nicol, 5 Bing. (N. C.) 508; 1 Jones on Liens, § 901. 17. Benjamin on Sales, § 861; Pub. Acts of Connecticut, 1907, Ch. 220, sec. 49. See Roudebush v. Hollis, 20 Pa. C. C. 324; Sanders v. Maclean (1883), 11 Q. B. D. 335, 344. the time and place of such resale should be given by the seller to the original buyer. (5.) The seller is bound to exercise reasonable care and judgment in making a resale and, subject to this requirement, may make a resale either by public or private sale. (1.) The seller,1 having secured the payment of the price by retaining possession of the goods? in the exercise of his right of lien, or by regaining it in the exercise of his right of stoppage in transitu, upon default of the buyer to pay for the goods according to the terms of the contract, may make his security effective by reselling them. The seller may apply this remedy in three cases: 4 3 1. The seller acts as the buyer's agent, but only in the sense in which a pledgee is the agent of the pledgor in selling the goods. 2 Mechem on Sales, § 1629; Bagley v. Findlay, 82 Ill. 524; Putnam v. Glidden, 159 Mass. 47; Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 N. Y. 426; Mason v. Decker, 72 N. Y. 595; Van Brocklen v. Smeallie, 140 N. Y. 70. The seller may sell by an agent and even employ the buyer as such agent. 2 Mechem on Sales, § 1631; Grist v. Williams, 111 N. C. 53. "It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual damages he may sustain. Doubtless in making it, the vendor would be bound to sell within a reasonable time, to exercise good faith to effect a sale at the best price he could obtain, to follow any proper instructions the vendee might give as to the time and manner in which it should be made, and to give credit upon the contract price for the amount ceived. His duties in making the sale may, in some respects, resemble those of an agent, and thus the expression that he acts as the agent of the vendee' has arisen. That he owes re the vendee the duty to thus conduct the sale is clear, but that his acts in making it can be properly regarded as the acts of an agent,' as that. word is generally understood, is quite otherwise. Surely the fact that a vendor might seek this remedy against an insolvent or doubtful vendee, would not confer upon the latter such a title as would enable him to demand and hold the property without complying with the terms of the contract. To say, then, that the vendor becomes the agent of the vendee in making the sale, is not quite correct, and is to be regarded at most as a mere fiction of law, and the beneficial title does not pass to the vendee." Moore v. Potter, 155 N. Y. 481. 2. The right of resale extends to every kind of personal property. 2 Mechem on Sales, § 1624; Pollen v. LeRoy, 30 N. Y. 549; Van Brocklen v. Smeallie, 140 N. Y. 70 (interest in partnership). 3. The seller cannot resell the goods until the price becomes due, unless the goods are perishable, or the buyer becomes insolvent. 2 Mechem on Sales, § 1626; Hickock v. Hoyt, 33 Conn. 553; West v. Cunningham, 9 Port. (Ala.) 104; Shaw v. Lady Ensley Coal Co., 147 Ill. 526; Diem v. Koblitz, 49 Ohio St. 41. 4. Clews v. Jamieson, 182 U. S. |