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the shipment. On the other hand the view has been taken in England under very similar circumstances that the merchant shipping the goods has a right of stoppage in transitu which will be enforced so as to enable him to claim the unpaid price owing from the consignee to the merchant at whose order the goods were shipped.+

402. Agent of Seller.-An agent having power to act for the seller, either generally or for the purpose of the consignment in question, may stop goods in transitu without particular authority, and if an agent acts without authority the seller's ratification of his act before. the transit is terminated is effectual; but if the one assuming to act in this respect for the seller has no authority so to act, his attempted exercise of the power is ineffectual in the first instance and a ratification of his acts by the seller, made after the transitus is ended, comes too late, for the ratification must be made while the transit continues, and under circumstances in which the ratifying party might himself lawfully have done the act which he ratifies."

403. Insolvency of Buyer Generally.-The insolvency of the buyer is essential to the seller's right of stoppage in transitu.8 It cannot be exercised at the mere caprice of the seller where no insolvency exists," and the fact that the goods have been levied on by attaching creditors of the buyer, if the buyer is not insolvent, does not give the seller the right of stoppage to the detriment of such creditors, and in order to establish his right of stoppage the seller must show the insolvency of the buyer. 10 This requirement of insolvency does not require that the buyer should be absolutely bankrupt or have been formally adjudged a bankrupt,11 but it merely imports a general inability to pay one's

3. A. J. Neimeyer Lumber Co. v. Burlington, etc., R. Co., 54 Neb. 321, 74 N. W. 670, 40 L.R.A. 534.

Notes: 105 A. S. R. 364; 34 L.R.A. (N.S.) 31.

4. Ex parte Davis, 13 Ch. D. 628, 42 L. T. N. S. 270, 48 W. R. 481, 4 Eng. Rul. Cas. 851.

5. Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188.

Notes: 29 Am. Dec. 394; 19 Am. Rep. 88; 1 A. S. R. 312.

6. Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188.

Note: 29 Am. Dec. 394.

7. Bird v. Brown, 4 Exch. 786, 19 L. J. Exch. 154, 14 Jur. 132, 23 Eng. Rul. Cas. 422.

Notes: 29 Am. Dec. 394; 19 Am. Rep. 88; 1 A. S. R. 313; 3 L.R.A. 648. 8. Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 So. 175, 54

A. S. R. 114; Newhall v. Central Pac. R. Co., 51 Cal. 345, 21 Am. Rep. 713; Mactier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530; Wood v. Roach, 2 Dall. (Pa.) 180, 1 U. S. (L. ed.) 340, 1 Am. Dec. 276; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 47 L. T. N. S. 454, 31 W. R. 125, 23 Eng. Rul. Cas. 399.

Notes: 29 Am. Dec. 386; 19 Am. Rep. 88; 11 L.R.A. 347; 23 Eng. Rul. Cas. 410.

9. People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530.

10. Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 So. 175, 54 A. S. R. 114.

11. Naylor V. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319.

Notes: 29 Am. Dec. 386; 19 Am. Rep. 88; 23 Eng. Rul. Cas. 410.

just debts in the ordinary course of business,12 and the fact that the buyer's financial affairs have become so seriously embarrassed that he is unable to fulfil his obligations has been held sufficient, especially where this is followed by his subsequent insolvency.18 It has been held that strict proof of insolvency is not required to justify the exercise of the right; that it is sufficient that there has been a failure to pay the debt on account of which the right is claimed, and that the debtor cannot be found at his reputed place of business. 14 The mere fact that the buyer may be in default in the performance of his part of the contract does not give the seller a right of stoppage; 15 and the right does not arise in case of the death of the buyer, unless his estate is also insolvent.16

404. Time When Insolvency Occurs.-The view has been taken that in order to give the seller a right of stoppage in transitu the insolvency of the buyer must have arisen after the sale,17 but this is contrary to the weight of authority, the general view being that though the insolvency existed at the time of the sale, if it was not discovered until afterwards by the seller, he has the right to stop the goods.18 As has been said if there be a want of ability to pay, it can make no difference, in justice or good sense, whether it was produced by causes, or shown by acts, at a period before or after the sale. 19 If, however, at the time of the sale the seller knew of the insolvency of the buyer, it seems that he cannot claim a right of stoppage; 20 and it has been

12. O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 A. S. R. 531; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351.

Notes: 29 Am. Dec. 386; 23 Eng. Rul. Cas. 410.

v. Norris, 16 Md. 122, 77 Am. Dec. 284; Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347; Fenkhausen v. Fellows, 20 Nev. 312, 21 Pac. 886, 4 L.R.A. 732; Chapman v. Lathrop, 6 Cow. (N. Y.) 110, 16 Am. Dec. 433; People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530; Farrell v. Richmond, etc., R.

13. Howatt v. Davis, 5 Munf. (Va.) Co., 102 N. C. 390, 9 S. E. 302, 11 A. 34, 7 Am. Dec. 681.

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S. R. 760, 3 L.R.A. 647; Calahan v. Babcock, 21 Ohio St. 281, 8 Am. Rep. 63; Wood v. Roach, 2 Dall. (Pa.) 180, 1 U. S. (L. ed.) 340, 1 Am. Dec. 276; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188; Sawyer v. Joslin, 20 Vt. 172,

16. Mactier v. Frith, 6 Wend. (N. 49 Am. Dec. 768.

Y.) 103, 21 Am. Dec. 262.

Notes: 29 Am. Dec. 387; 11 A. S. R.

17. Notes: 29 Am. Dec. 387; 3 766; 3 L.R.A. 647. L.R.A. 647.

18. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17; Jones v. Earl, 37 Cal. 630, 99 Am. Dec. 338; Pattison v. Culton, 33 Ind. 240, 5 Am. Rep. 199; Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Blum v. Marks, 21 La. Ann. 268, 99 Am. Dec. 725; O'Brien

19. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17.

20. O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284; Fenkhausen v. Fellows, 20 Nev. 312, 21 Pac. 886, 4 L.R.A. 732. See also Blum v. Marks, 12 La. Ann. 268, 99 Am. Dec. 725. Note: 11 L.R.A. 347.

held that where the seller knew of the insolvency of the buyer at the time he sold and shipped him the goods, and trusted alone to his honor for payment, he cannot reclaim them after they have been attached and passed into the possession of an officer. The insolvency of the buyer need not occur before the arrival of, the goods at their destination, it being sufficient if he becomes so before he has taken possession.o

405. Nonpayment of Price.-The right of stoppage in transitu only exists in case of sales on credit; if the price has been paid no right of stoppage can exist, and if the note or other obligation of a third person is taken in payment of the price, without indorsement or guaranty by the buyer, no right of stoppage exists. On the other hand the fact that the buyer has paid a part of the price does not affect the seller's right of stoppage; 5 and the seller is not required to refund such part payment. So, the fact that the seller takes the buyer's note or bill of exchange for the price does not affect the right of stoppage, though the paper is negotiable and has been indorsed and negotiated by the seller, and though the seller gave a receipted bill of sale for the goods. It is also held that a note taken for the price need not be tendered back on the exercise of the right of stoppage. 10 This follows from the fact that the exercise of the right does not operate as a rescission of the sale.11 The fact that the seller may have recourse for the price against a third person, such as a surety, does not affect his right of stoppage.12

1. Fenkhausen v. Fellows, 20 Nev. 29 Am. Dec. 489; Brewer Lumber Co. 312, 21 Pac. 886, 4 L.R.A. 732.

2. Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319.

3. Gwyn v. Richmond, etc., R. Co., 85 N. C. 429, 39 Am. Rep. 708; Wood v. Roach, 2 Dall. (Pa.) 180, 1 U. S. (L. ed.) 340, 1 Am. Dec. 276.

Notes: 19 Am. Rep. 88; 11 L.R.A. 347; 23 Eng. Rul. Cas. 410.

4. Notes: 29 Am. Dec. 387; 19 Am. Rep. 88; 23 Eng. Rul. Cas. 410.

5. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Ilsley v. Stubbs, 9 Mass. 65, 6 Am. Dec. 29; Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Howatt v. Davis, 5 Munf. (Va.) 34, 7 Am. Dec. 681.

Notes: 29 Am. Dec. 387; 19 Am. Rep. 88; 3 L.R.A. 648.

6. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489.

Note: 29 Am. Dec. 387.

7. Newhall v. Vargas, 13 Me. 93,

v. Boston, etc., R. Co., 179 Mass. 228, 60 N. E. 548, 88 A. S. R. 375, 54 L.R.A. 435; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 A. S. R. 531.

Notes: 29 Am. Dec. 387; 19 Am. Rep. 88; 3 L.R.A. 648; 11 L.R.A. 348; 23 Eng. Rul. Cas. 410.

8. Ilsley v. Stubbs, 9 Mass: 65, 6 Am. Dec. 29; Brewer Lumber Co. v. Boston, etc., R. Co., 179 Mass. 228, 60 N. E. 548, 88 A. S. R. 375, 54 L.R.A. 435; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 A. S. R. 531.

Notes: 29 Am. Dec. 387; 19 Am. Rep. 88.

9. Brewer Lumber Co. v. Boston, etc., R. Co., 179 Mass. 228, 60 N. E. 548, 88 A. S. R. 375, 54 L.R.A. 435. 10. Note: 29 Am. Dec. 387. 11. See infra, par. 422.

12. Newhall v. Vargas, 13 Me, 93, 29 Am. Dec. 489.

Note: 29 Am. Dec. 387.

406. Against Whom Right Enforceable Generally.-The right of stoppage in transitu is subject to the carrier's lien for freight charges,18 and a delivery by the carrier of part of the goods to the consignee does not discharge or waive the lien on the rest without proof of an intention so to do.14 If the carrier has delivered a part of the goods before the seller has notified the carrier of the exercise of his right of stoppage, the carrier's lien for the entire freight is superior to the right of the seller. 15 Even though the goods were shipped to the buyer on his own vessel it has been held compulsory on the seller to discharge the freight charges before he would be entitled to take possession of the goods at the home port, as he should not be permitted to put the buyer in a worse position with respect to the goods than if the seller had retained. the possession, and also enable him to obtain an advantage, to the extent of the reasonable freight charges, over the other creditors of the buyer.16 On the other hand the right of stoppage being coeval with and springing out of the very contract by which the buyer claims the goods, it is paramount to any lien of a third party against him, unless such lien arise from the necessary care, trouble, or expense incurred about the goods themselves in the course of the transit.17 It is paramount to any lien, created by usage or by agreement between the carrier and the consignee, for a general balance of account as distinguished from a lien for the carriage of the goods in question,18 though the general account involves freight owing on other shipments by the seller to the buyer. 19 It has been held that a stipulation in a bill of lading that "the several carriers shall have a lien upon the

13. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617; Potts v. New York, etc., R. Co., 131 Mass. 455, 41 Am. Rep. 247; Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885.

Note: 23 Eng. Rul. Cas. 416. 14. See CARRIERS, vol. 4, p. 872. 15. Potts v. New York, etc., R. Co., 131 Mass. 455, 41 Am. Rep. 247.

Note: 12 A. S. R. 888.

16. Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617. In the earlier case, however, of Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489, which involved the same voyage, the claim of the buyer for freight charges was considered as being on the footing of a part payment for the goods and that therefore the seller need not discharge the same in order effectually to enforce his right of stoppage. As to when the right of

stoppage exists if the buyer is the
owner of the means of carriage, see
infra, par. 413.

17. Hause v. Judson, 4 Dana (Ky.)
7, 29 Am. Dec. 377; Hepp v. Glover,
15 La. 461, 35 Am. Dec. 206; Farrell
v. Richmond, etc., R. Co., 102 N. C.
390, 9 S. E. 302, 11 A. S. R. 760, 3
L.R.A. 647.

Note: 29 Am. Dec. 393.

18. Potts v. New York, etc., R. Co., 131 Mass. 455, 41 Am. Rep. 247; Farrell v. Richmond, etc., R. Co., 102 N. C. 390, 9 S. E. 302, 11 A. S. R. 760, 3 L.R.A. 647; Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885.

Notes: 29 Am. Dec. 393; 5 Eng. Rul. Cas. 284; 16 Eng. Rul. Cas. 135; 23 Eng. Rul. Cas. 413.

19. Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885.

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goods (shipped) for all arrearages of freight and charges due by the same owners or consignees on other goods," if binding at all, is entirely subordinate to the consignor's right of stoppage in transitu, and is ineffectual to give the carrier a lien such as stipulated for which will take precedence of such right.20

407. Execution and Attachment Creditors.-The view has been taken that when the goods are seized while in transit and removed by the officer from the possession of the carrier the seller's right of stoppage in transitu is lost on the theory that the transit is ended, but the general view is that such a seizure does not affect the seller's right to stop in transit. In such a case the levying officer succeeds only to the rights of the buyer, and his seizure of the goods does not terminate the transit by delivery within the meaning of the rule under which the right of stoppage terminates with delivery by the carrier, as this is not a taking or acceptance of possession by the buyer, the proceeding being in invitum.3 And it has been held that an attaching creditor, or a person acting for such creditor, will not be allowed to become the agent or representative of the buyer for the purpose of procuring or accepting delivery of the goods from the carrier and thereby cut off the right of the seller to stop them in transit; that if the seller loses this right, it must be by the usual course of events or such as occurs without combination, connivance or co-operation of the buyer and the attaching creditor. The demand of the buyer in order to exercise his right is properly made on the levying officer when he has taken possession. The seller has the same right to the proceeds as he had to the goods, where his right is asserted after they are converted into money, under an order of the court issuing the attachment, but

20. Farrell v. Richmond, etc., R. Co., 102 N. C. 390, 9 S. E. 302, 11 A. S. R. 760, 3 L.R.A. 647. See also Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885.

1. Note: 11 L.R.A. 348.

2. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 So. 175, 54 A. S. R. 114; Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; Blum v. Marks, 21 La. Ann. 268, 99 Am. Dec. 725; Hepp v. Glover, 15 La. 461, 35 Am. Dec. 206; O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284; Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319; Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49; Farrell v. Richmond, etc., R. Co., 102 N. C. 390, 9 S. E. 302, 11 A.

S. R. 760, 3 L.R.A. 647; Calahan v.
Babcock, 21 Ohio St. 281, 8 Am. Rep.
63; Parker v. McIver, 1 Desaus. (S.
C.) 274, 1 Am. Dec. 656; Chandler v.
Fulton, 10 Tex. 2, 60 Am. Dec. 188;
Harris v. Tenney, 85 Tex. 254, 20 S.
W. 82, 34 A. S. R. 796; Sawyer v.
Joslin, 20 Vt. 172, 49 Am. Dec. 768.

Notes: 29 Am. Dec. 393; 19 Am. Rep. 91; 60 Am. Rep. 51; 3 L.R.A. 618; 11 L.R.A. 348; 23 Eng. Rul. Cas. 433.

3. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84.

Note: 29 Am. Dec. 393.

4. Harris v. Tenney, 85 Tex. 254, 20 S. W. 82, 34 A. S. R. 796.

5. Rucker v. Donovan, 13 Kan. 251. 19 Am. Rep. 84; Sawyer v. Joslin, 20 Vt. 172, 49 Am. Dec. 768. Note: 29 Am. Dec. 394.

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