Sec. 767. (§ 416.) How long goods will be deemed in transit. -So long as they remain in any place of deposit connected with their transmission, as in the hands of a middleman, as a packer or warehouseman, or even of an agent of the vendee himself21 at any stage of their journey for the purpose of being forwarded, 22 or, although they may have passed through the hands of several carriers, if they have still to reach the destination originally intended, they may be stopped by the vendor. And although they may have reached their destination, if anything remains to be done, as the payment of freight upon them, or if they must be weighed before the consignee is entitled to their possession, they are still in transitu for the purpose of stoppage by the vendor.23 Sec. 768. (§ 416a.) Actual or constructive delivery defeats right. An actual or constructive delivery of the goods to the consignee will, however, defeat the right of stoppage. Up to that time the right may still be exercised, but after that time it is at an end.24 After the goods have once been delivered to the consignee the right of stoppage will not revive because he goods by stoppage in transitu. A sale by the consignee to the carrier under such circumstances, in consideration of the unpaid freight on the goods, and other pre-existing debts, does not constitute the carrier a bona fide purchaser. Wheeling, etc. Railrcad Co. v. Koontz, 61 Ohio St. 551, 56 N. E. Rep. 471, 76 Am. St. Rep. 435. 21. Buckley V. Furniss, 15 Wend. 137; Coates v. Railton, 6 B. & C. 422; Cabeen v. Campbell, 6 Casey, 254; Harris r. Pratt, 17 N. Y. 249; Harris v. Hart, 6 Duer, 606; Railroad Co. v. Koontz, 61 Ohio St. 551, 56 N. E. Rep. 471, 76 Am. St. Rep. 435. 22. See Benjamin on Sales, §§ 839-844, where the cases in which it has been held that the right of 23. Goods may be stopped in transit when they have not been delivered to the purchaser or to any agent of his to hold for him otherwise than as carrier, but are still in the hands of the carrier as such and for the purposes of transit, although such carrier was the purchaser's agent to accept the delivery so as to pass the property. Bethell v. Clark, 20 Q. B. Div. 615; Lyons v. Hoffnung, 15 App. Cas. 391. 24. Schuster v. Carson, 28 Neb. 612, 44 N. W. Rep. 734; Klein r Fischer, 30 Mo. App. 568; The Natchez, 31 Fed. Rep. 615; Lang reships them to a further point.25 But an order for delivery of the goods at a particular warehouse or point within the original destination cannot ordinarily be considered a direction to start the goods to another destination so as to defeat the vendor's right of stoppage.26 Sec. 769. (§ 417.) What constitutes a delivery.—But it is not necessary that the goods should have come into the actual possession of the buyer, to put an end to the right of the vendor. If the wharfinger or warehouseman is the agent of the buyer to keep the goods for him, or if he has agreed with the buyer before their arrival to receive and hold them for him, or if such is the usage and usual course of dealing between them,27 the vendor's right of stoppage will have ended as soon as the goods arrive and are stored with such agent. And if the consignee, for his own convenience, agree with the carrier to let his goods remain in his warehouse, to be delivered when or as he should want them, or if that be the course of dealing between them, the carrier becomes the warehouseman or agent of the buyer, although he may still have a lien upon them for his freight.28 But the carrier cannot of his own will change staff v. Stix, 64 Miss. 171; Hall v. Dimond, 63 N. H. 565; Greve v. Dunham, 60 Iowa, 108; Halff v. Allyn, 60 Tex. 278; Macon, etc. R. Co. v. Meador, 65 Ga. 705; More v. Lott, 13 Nev. 376. order to rebut this presumption there must be proof of some agreement or arrangement between the buyer and the carrier whereby the latter, while retaining his lien, becomes the agent of the buyer 25. Brooke Iron Co. v. O'Brien, to keep his goods for him; and in the absence of such an agree135 Mass. 442. 26. Lewis v. Sharvey, 58 Minn. ment, unless the evidence justifies 464, 59 N. W. Rep. 1096. the inference that the carrier is 27. Wentworth v. Outhwaite, 10 holding the goods subordinate to M. & W. 436. 28. See Taylor v. Railway Co., (1901) 1 Q. B. 774, 70 L. J. Q. B. 499. But the existence of the carrier's lien for unpaid freight charges, it has been held, raises a strong presumption that the carrier continues to hold the goods in its capacity as carrier; and in and for the consignee, the fair implication of the law is that, if the goods are in the carrier's warehouse awaiting payment of freight and other charges, the transitus has not been ended, and that the carrier holds them in his capacity of carrier to keep good his common law lien for freight and charges, and that they are still his character so as to become the buyer's agent or warehouseman without the latter's assent, nor can the buyer change the capacity in which the carrier holds the goods, so as to make him a bailee for the buyer, without the carrier's assent. The intentions of both must concur. As where the goods were actually delivered into the possession of the consignee, who upon examination sent them back to the carrier with instructions to return them to the seller, who in turn refused to take them, by reason of which they were left in the carrier's hands as warehouseman, and it was contended that the goods remained in the hands of the carrier for the real owner who was the buyer; while it was admitted that the buyer was the real owner, it was held that the goods had never ceased to be in transitu, the intention of the buyer being a material fact, and that the carrier did not become his agent upon the return of the goods by him.29 So where the consignee went on board the vessel, and said to the captain that he had come to take possession of his goods, and saw and touched them, but was told by the captain in the same interview that he would deliver him the goods when he was satisfied about his freight, whereupon the consignee left, and the vendor then went on board and gave notice of stoppage to the mate, it was held that no actual possession had been taken by the assignee, and that as the captain had not contracted to hold as his agent the transitus was not at an end, and the stoppage was good.30 Delivery of goods to the store of the vendee which at the subject to the vendor's right of stoppage. A delivery by the carrier of part of the goods, therefore, when he is holding such goods for the purpose of securing unpaid freight charges, will not operate as a constructive delivery of the whole, unless the circumstances show that the carrier and buyer intended a partial delivery to so operate. Jeffris v. Railroad Co., 93 Wis. 250, 57 Am. St. Rep. 919, 67 N. W. Rep. 424. It is a question for the jury whether the transit had ended when the vendee, being unable to pay the freight, to save demurrage, was allowed by the railroad to unload the cars and pile the goods in its yard until he could pay the freight. Rogers v. Schneider, 13 Ind. App. 23, 41 N. E. Rep. 71. 29. Bolton v. The Railway Co., 1 L. R. C. P. 431. 30. Whitehead v. Anderson, 9 M. & W. 518. time is in the possession of the sheriff,31 or a mortgagee,32 will not be considered a delivery to the consignee such as will defeat the vendor's right of stoppage. Sec. 770. (§ 418.) When transit deemed to be ended. The transitus will be considered as ended when the goods have been delivered at the consignee's own warehouse, or when they have been delivered at a place where the consignee intends them to remain until he, by his orders, gives them a further destination. So he may demand their delivery to himself at any point upon their journey, and thus put an end to the right of the vendor to stop them.33 And if the carrier wrongfully refuse to deliver the goods upon the demand of the consignee, the transitus is at an end as soon as the demand is made and refused, and the right of stoppage is gone.34 But it will not be terminated by an unauthorized demand on the carrier, with which he fails to comply.35 Sec. 771. ($419.) Same subject. It is held that if the buyer send his own cart or vessel for the goods, or receive them thereon for transportation, they will be considered as having reached his actual possession, unless the vendor restrain the effect of such delivery by taking a receipt or bill of lading, so expressed as to indicate that the delivery to the master of the vessel is to him as an agent for carriage, and not as an agent to receive possession for the buyer.36 There are, however, cases which hold that so long as the property is merely on its way to the buyer, it may be stopped without reference to the mode of conveyance, and that the delivery to an agent of the vendee, though he may be the master of the vendee's 31. Harris v. Tenney, 85 Tex. 254, 20 S. W. Rep. 82, 34 Am. St. Rep. 796. 32. Kingman v. Denison, 84 Mich. 608, 48 N. W. Rep. 26, 22 Am. St. Rep. 711. 33. Whitehead v. Anderson, 9 M. & W. 518; The London, etc. Railway v. Bartlett, 7 H. & N. 400; Secomb v. Nutt, 14 B. Mon. 324; 34. Bird v. Brown, 4 Exch. 786. 35. Allen v. Mercier, 1 Ash. 103; Reynolds v. The Railroad, 43 N. H. 580. 36. Turner V. The Liverpool Docks Trustees, 6 Exch. 543; Van vessel, will not terminate the transitus where the object in view is the transportation of the property to its destination.37 Sec. 772. (§ 420.) Not necessary that vendor obtain actual possession of goods-Notice is sufficient. It was formerly held that, in order to make the stoppage in transitu effectual, the vendor must recover back the actual possession of the goods. But it is now settled that a demand made upon the carrier for them, or a notice to him to stop their delivery to the consignee, or an assertion of the vendor's right after an entry of the goods at the custom-house, or a claim and endeavor to get possession, is equivalent to an actual recovery of the goods into the vendor's possession. After such notice, the vendor will be considered as constructively in possession, and if the demand for their redelivery be refused, or if they be given up to another after such notice, the vendor may maintain trover against the carrier, or any other person, though it may be the buyer himself, into whose possession they have come. The title to the goods will still remain in the buyer as before, but the seller will be considered as put in the same position as to his lien that he held before he parted with them.38 Sec. 773. (§ 421.) Duty and liability of carrier after notice. The insolvency of the buyer is essential to the exist ence of the right of the vendor to stop the goods. If, therefore, the former be solvent at the time of its attempted exercise, the Casteel v. Booker, 2 id. 691; 37. Stubbs v. Lund, 7 Mass. 453; Harris v. Pratt, 17 N. Y. 249; Harris v. Hart, 6 Duer. 606; Holbrook v. Vose, 6 Bosw. 76; Newhall v. Vargas, 13 Me. 93. 38. Litt v. Cowley, 7 Taunt. 169; Bohtlingk v. Inglis, 3 East, 381; Northey v. Field, 2 Esp. 613; Mills v. Ball, 2 Bos. & P. 457; Newhall v. Vargas, 13 Me. 93; Jordan v. James, 5 Ham. 88; Wentworth v. Outhwaite, 10 M. & W. 436; Cox v. Burns, 1 Iowa, 64; O'Neil v. Garrett, 6 id. 480; White v. Welsh, 38 Penn. St. 396; Rowley v. Bigelow, 12 Pick. 307; Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. Rep. 65, 57 L. R. A. 527, affirming 66 N. Y. S. 841, 54 App. Div. 275. Payment of the freight must be made to the carrier before the consignor can obtain possession of the goods under his right of stoppage in transitu. Pennsylvania Steel Co. v. Railroad Co., 94 Ga. 636, 21 S. E. Rep. 577. |