the vendor to the buyer on a warehouseman, the vendor may, before actual possession is taken by the buyer, or some innocent purchaser of the order has intervened, revoke the order and restore his right to lien.*

SAME

Sec. 1118. SUBJECT-RESALE.Where the buyer has notice to take away the goods and pay the price, but does not do so, can the vendor resell the goods, or must he hold them, obtain a judgment and sell them on execution? Mr. Benjamin states the rule to be in England, that while the lien amounts to more than a mere right to hold the goods, yet it does not amount to a "complete resumption of the right of property, or, in other words, to a right to rescind the contract of sale, but perhaps comes nearer to the rights of a pawnee with a power of sale, than to any other common law rights. At all events, it seems that a resale by the vendor, while the purchaser continues in default, is not so wrongful as to authorize the purchaser to consider the contract rescinded, so as to entitle him to recover back any deposit of the price, or to resist paying any balance of it still due; nor yet so tortious as to destroy the vendor's right to retain, and to entitle the purchaser to sue in trover."+

The right of resale on default of the buyer to make payment, and to recover the difference between the proceeds and the original contract price is quite generally

*Keeler v. Goodwin, 111 Mass. 490; Anderson v. Reed, 106

N. Y. 333.

†Benj. Sales, Sec. 782; Blackburn on Sales, p. 325.

admitted in America. Of course the sale must be fairly made, and within a reasonable time in order to furnish a conclusive test of the vendor's damages against the vendee. It is usual to give notice to the buyer of the time and place of sale, or at least inform the buyer that the vendor intends to exercise the right of sale. But such notice is not held to be absolutely necessary in the cases. The sale being fairly made, the amount obtained is applied upon the purchase price and the vendor may recover the difference between this amount and the original contract price from the vendee by action. The necessary expenses of the sale is also to be deducted from the amount realized, but not expenses of storage and the like after the property could have been sold.‡

Sec. 1119. SAME SUBJECT-STOPPAGE in transitu.-The right of stoppage in transitu, which the

*Haines v. Tucker, 50 N. H. 313; Shawhan v. Van Nest, 25 Ohio St. 490; Sands v. Taylor, 5 Johns. 395, a leading case; Mason v. Decker, 72 N. Y. 599; Holland v. Rea, 48 Mich. 218; Bagley v. Findley, 82 Ill. 524.

†Maulding v. Steele, 105 Ill. 644; Lindon v. Eldred, 49 Wis. 305; Smith v. Pettee, 70 N. Y. 13; Saladin v. Mitchell, 45 Ill. 79; Rosenbaums v. Weeden, 18 Gratt. 785; Clore v. Robinson, 38 S. W. Rep. 687.

15 Johns. 395; Lewis v. Greider, 51 N. Y. 231; Whitney v. Boardman, 118 Mass. 242; Chalmers v. McAuley, 68 Vt. 44; Rickey v. Ten Broeck, 63 Mo. 567. If the goods should bring more than the price of the original contract the buyer derives no benefit from it, the increased profit goes to the vendor; but the buyer can show in an action for damages that the breach has caused no loss to the vendor.

unpaid vendor may exercise, never arises except upon the insolvency of the buyer, and is based on the rule that one man's goods shall not be applied to the payment of another's debts.*

This right of the vendor, on the insolvency of the buyer, is almost universally recognized among commercial nations. It seems that it may be exercised by the vendor or his agent, and those who stand in the relation of vendors or consignors, especially where the bill of lading has been transferred by the vendor to his agent.†

There must be three parties in order to exercise the right of stoppage in transitu, a vendor, a vendee, and a middleman, such as a carrier, having possession of the goods. The goods must be in the possession of a third person, since if they come into the actual possession of the vendee the vendor loses the right.‡

While the right of stoppage in transitu may be exercised by others than the vendor, and without authority from him, yet if the vendor does not ratify the act before the transit ends it will be ineffective. And, gen

*Gibson v. Carruthers, 8 M. & W. 337, giving a history of as originally allowed in equity, and subsequently

the right,

adopted as a rule of law.

+Feise v. Wray, 3 East. 93; Morison v. Gray, 2 Bing. 260; Seymour v. Newton, 105 Mass. 275; 13 Me. 93; Gossler v. Schepeler, 5 Daly 476; 85 N. C. 429.

‡Poole v. R. R. Co., 58 Tex. 134; Stevens v. Wheeler, 27 Barb. 658; Secomb v. Nutt, 14 B. Monr. 324; 106 Mass. 67; 60 Ia. 108: 160 Pa. St. 527; Guilford v. Smith, 30 Vt. 49; Covell v. Hitchcock, 23 Wend. 611.

erally, persons having merely liens on the goods and not the owners, or in the relation of owners, cannot stop goods in transit under this right. (123 Mass. 12.)

This right of the vendor exists notwithstanding the partial payment of the price; is neither lost by his having received conditional payment, as bills of exchange or other security, or having given credit and the like.* As regards notes and bills of exchange it is held that even if the vendor negotiates the bills and they are outstanding in third persons' hands, he has still the right of stoppage if the notes are not matured.†

But a vendor who has received securities in absolute payment of the price has no right of stoppage in transitu. He has no further remedy against the goods but must look to the securities. (32 Vt. 58.)

By insolvency, is meant the general inability to pay one's debts. It is probable that the failure to pay one's just debts would be sufficient evidence of insolvency to require the vendee against whom it was charged to show that he was not insolvent. The vendor must have some evidence of the insolvency of the buyer before he can exercise the right of stoppage in transitu. If the vendor stops the goods when the vendee is not in fact insolvent, he does so at his peril, and thereby becomes liable in damages to the vendee for the loss sustained by him.‡

*Eaton v. Cook, 32 Vt. 58; Stubbs v. Lund, 7 Mass. 453; Clapp v. Sohmer, 55 Ia. 273; Buckley v. Furniss, 17 Wend. 504; Newhall v. Vargas, 13 Me. 93; 20 N. H. 154.

†Benj. Sales, 835; 4 Cush. 33.

Benj. Sales, Sec. 837-8; Biddlecombe v. Bond, 4 A. & E.

Sec. 1120. WHEN DOES A TRANSIT BEGIN AND END?--The transit is held to continue from the time the vendor parts with the possession until the purchaser acquires it. That is, from the time the vendor has so far made delivery that his right to retain the goods and right of lien for the purchase price are gone, to the time when the goods have reached the possession of the buyer, or his assignee. The goods are subject to stoppage as long as they remain in the possession of the carrier as a carrier. But where the buyer sends his own agent or servant for the goods, delivery to such servant or agent is delivery to the buyer, and the right is ended. So if the buyer sends his own conveyance or vessel, they have reached his possession as soon as the vendor has delivered them into the conveyance or vessel.*

Goods may be still in transit although lying in a warehouse to which they have been sent by the vendor on the purchaser's order. The test for determining whether the transit is ended is in what capacity is the goods held by him who has them in custody. Where the goods have reached their destination, and the question arises whether they remain in the hands of the carrier, as a carrier, or in some other capacity. The rule

232; Clapp v. Sohmer, 55 Ia. 273; 38 Mich. 674; 43 N. H.

580; 63 Ala. 243; 12 Ohio St. 515.

*James v. v. Griffin, 2 M. & W. 633; Blackburn on Sale, 242; 11 B. Monr. 324; 17 N. Y. 249; 30 Pa. St. 254. The vendor may restrain the delivery to the vendee on his own vessel by taking a bill of lading in the name of the captain as bailee.