5 erally recognized that the fact that the vessel on which goods are shipped to the buyer is owned by or chartered by him, if also in general service, does not necessarily constitute an absolute delivery to the buyer, thereby depriving the seller of his right of stoppage; so if the buyer has merely, in effect, contracted with the carrier, as carrier, for the transportation of the goods, a delivery on board the vessel is the same as a delivery on board any general ship, and a transitus is interposed between buyer and seller. A seller who delivers goods into the buyer's own ship may restrain the effect of such delivery and preserve his right of stoppage in transitu by taking bills of lading for the goods to be delivered to his order or assigns. In a number of American cases the doctrine is laid down that where the goods are delivered on board the buyer's vessel to be transported to him, they are in transitu until they reach him; whereas, if they are to be carried to a foreign market, or to another party, there is no transitus, the master of the vessel being regarded as the buyer's agent to receive absolute delivery. In the latter case the fact that the master of the ship is one of the buyers does not necessarily constitute a delivery to the ship an absolute delivery to the buyers so as to deprive the seller of his right of stoppage." 414. Delivery to Agent of Buyer Generally.-Where the delivery by the seller is to an agent of the buyer to hold and not for the purpose of transportation to the latter, such delivery is ordinarily deemed absolute and the goods, while in the agent's hands, are not deemed in transit so as to give the seller any right to stop their delivery by the agent to his principal,10 though the delivery is to an agent of the buyer who holds them as a forwarder awaiting orders of the buyer as to further shipment.11 So a delivery on board of a vessel appointed by the buyer to receive it, not for the purpose of transportation to him, or to a place appointed by him to be delivered there for his use, but to be shipped by such vessel, in his name, from his own place of residence and business to a third person, is a termination of the transit or abso 5. Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63; Ilsley v. Stubbs, 9 Mass. 65, 6 Am. Dec. 29; Parker v. McIver, 1 Desaus. (S. C.) 274, 1 Am. Dec. 656. Notes: 19 Am. Rep. 89; 62 L.R.A. 806. 6. Note: 29 Am. Dec. 388. 7. Note: 19 Am. Rep. 89. 8. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63; Ilsley v. Stubbs, 9 Mass. 65, 6 Am. Dec. 29. See also Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721. Note: 29 Am. Dec. 388. This distinction is also made whether the buyer owns the vessel or not. See the preceding paragraph. 9. Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63. 10. Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439; Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489. Notes: 19 Am. Rep. 90; 23 Eng. Rul. Cas. 429. 11. Notes: 19 Am. Rep. 90; 11 L.R.A. 349. lute delivery to the buyer and the right of the seller to stop in transitu is at an end.12 If, however, the delivery is to the agent as carrier of the buyer to be forwarded, the transit is not terminated by their coming into the agent's hands. 13 415. Right as Affected by Termination of Transit Generally.-As the phrase right of "stoppage in transitu" implies, the right terminates with the transit, and is completely lost by a termination of the transit and an actual or constructive delivery to the buyer.14 The courts have frequently recognized the difficulty of laying down specific rules for determining when the transit is ended and thereby the seller's right of stoppage.15 Notwithstanding the arrival of the goods at the destination appointed for them, they are to be deemed in transit so far as the buyer's right to stop them is concerned so long as they remain in the carrier's possession as carrier; that is to say, until the carrier has either delivered them or consented to hold them as the buyer's agent for custody, or the buyer has performed some act of ownership respecting them.16 Undoubtedly if the buyer expressly refuses to accept delivery from the carrier the transit is not ended by the arrival at the destination so as to defeat the seller's right of stoppage.17 Where the goods 12. Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607. 13. Johnson v. Eveleth, 93 Me. 306, 45 Atl. 35, 48 L.R.A. 50; 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. Notes: 29 Am. Dec. 388; 19 Am. Rep. 90; 60 Am. Rep. 55; 23 Eng. Rul. Cas. 428. 14. In re W. A. Patterson Co., 186 Fed. 629, 108 C. C. A. 493, 34 L.R.A. (N.S.) 31; Newhall v. Central Pac. R. Co., 51 Cal. 345, 21 Am. Rep. 713; Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347; Hollingsworth v. Napier, 3 Caines (N. Y.) 182, 2 Am. Dec. 268; Parker v. Melver, 1 Desaus. (S. C.) 274, 1 Am. Dec. 656; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. Notes: 29 Am. Dec. 389; 3 L.R.A. 649. 15. Sawyer v. Joslin, 20 Vt. 172, 49 Am. Dec. 768. 16. Jacobs v. Bentley, 86 Ark. 186, 110 S. W. 594, 126 A. S. R. 1086; Ocean Steamship Co. v. Ehrlich, 88 164; Branan v. Atlantic, etc., R. Co., Ga. 164, 14 S. E. 707, 30 A. S. R. 108 Ga. 70, 33 S. E. 836, 75 A. S. R. 26; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319; 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; 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; Wheeling, etc., R. Co. v. Koontz, 61 Ohio St. 551, 56 N. E. 471, 76 A. S. R. 435; Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885; 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; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351; 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. 389; 19 Am. Rep. 91; 60 Am. Rep. 51; 1 A. S. R. 312; 3 L.R.A. 648; 23 Eng. Rul. Cas. 427, 430. 17. Tufts v. Sylvester, 79 Me. 213, 9 Atl. 357, 1 A. S. R. 303; Naylor v. remain in the actual possession of the carrier, it seems that the exist ence of the carrier's lien for unpaid freight raises a strong presumption that the carrier continues to hold the goods as carrier, and not as warehouseman; and in order to overcome this presumption there must be proof of some arrangement or agreement between the buyer and the carrier, whereby the latter, while retaining his lien, becomes the agent of the buyer to keep the goods for him.18 416. Demand by Buyer as Terminating Transit.-The transit is not terminated by the mere interposition of a claim to the goods by the buyer, 19 or by the delivery by the buyer of an order to the carrier directing delivery of the goods to a third person on payment of the freight,20 though the carrier promises such person to hold the goods subject to his order.1 In some cases the view is taken that if the carrier refuses to deliver the goods to the buyer on demand or postpones delivery the transit is not ended, and irrespective of such demand the right of stoppage may still be exercised. In other cases, especially in England, the view is taken that after a proper demand on the carrier for possession and tender of the freight charges by the buyer, though the demand is refused, the transit is deemed ended and the seller cannot thereafter exercise his right of stoppage, as the carrier cannot by a wrongful refusal to deliver extend the time during which the right of stoppage may be exercised by the seller. 417. Sufficiency of Delivery to End Transit Generally.-The delivery required to put an end to the transit and defeat the seller's right of stopping goods in transitu differs from that required merely to pass the property in the goods and put them at the buyer's risk; and in this connection it has been said that it must be actual delivery or its equivalent, and that to constitute such delivery, there must be a "corporal touch" of the goods. This expression must be understood figuratively, however, if it is ever true, and Lord Kenyon admitted Dennie, 8 Pick. (Mass.) 198, 19 Am. V. Notes: 29 Am. Dec. 392; 19 Am. Rep. 92; 23 Eng. Rul. Cas. 428, 431. 18. Farrell v. Richmond, etc., R. Co., 102 N. C. 390, 9 S. E. 302, 11 A. S. R. 760, 3 L.R.A. 647; Jeffris Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351. See also 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. Note: 30 A. S. R. 166. 19. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Farrell v. Richmond, etc., R. Co., 102 N. C. 390, 9 S. E. R. C. L. Vol. XXIV.-10. 145 302, 11 A. S. R. 760, 3 L.R.A. 647. 20. Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351. 1. Branan v. Atlanta, etc., R. Co., 108 Ga. 70, 35 S. E. 836, 75 A. S. R. 26. 2. Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. Note: 29 Am. Dec. 392. 3. Bird v. Brown, 4 Exch. 786, 19 L. J. Exch. 154, 14 Jur. 132, 23 Eng. Rul. Cas. 422. Note: 23 Eng. Rul. Cas. 431. 4. Note: 29 Am. Dec. 389. 5. Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439; Sawyer 6 having on one occasion made the remark that a "corporal touch" was necessary, and expressed a wish that "the expression had never been used," because it said "too much." "All that is necessary," said he, "is that the consignee exercise some act of ownership on the property consigned to him." While the transit is considered to continue so long as the carrier holds as such, it is well recognized that there may be a delivery to the buyer putting an end to the seller's right of stoppage without a manual possession being taken. And, as a general rule, there is a constructive delivery to and possession taken by the buyer, after the goods reach their destination when the carrier enters expressly or by implication into a new agreement, distinct from the original contract for carriage, to hold the goods for the buyer, as his agent, not for the purpose of expediting them to the place of original destination, pursuant to that contract, but in a new character, for the purpose of custody, on his account, and subject to some new or further order to be given to him, as where the buyer pays the freight and receipts for the goods though they are left with the carrier to be thereafter called for. After the goods have reached their destination a delivery by the carrier to the agent of the buyer to hold for him terminates the transit in so far as the seller's right of stoppage is concerned,10 and as a general rule wherever the goods reach the hands of agents of the buyer authorized to receive them and give them a new destination, or awaiting his orders as to their future destination, they are deemed. delivered and the transit is ended.11 The fact that the goods are taken from the carrier by one having no authority from the buyer to do so will not terminate the seller's right of stoppage,12 and so it has been held that the fact that the goods are taken from the carrier by a teamster or truckman and placed in the store of the buyer, without his knowledge or authorization, and remained there without any claim thereto by him as owner would not defeat the seller's right of stoppage.18 It has also been held that a delivery of goods at a storehouse v. Joslin, 20 Vt. 172, 49 Am. Dec. 768; Ellis v. Hunt, 3 T. R. 464, 1 Rev. Rep. 743, 23 Eng. Rul. Cas. 416. Note: 29 Am. Dec. 389. 6. Note: 29 Am. Dec. 389. 7. Ellis v. Hunt, 3 T. R. 464, 1 Rev. Rep. 743, 23 Eng. Rul. Cas. 416. Note: 29 Am. Dec. 391. 8. Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49; 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. 389; 23 Eng. Rul. Cas. 428. 9. Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49. But see Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. 707, 30 A. S. R. 164. Note: 30 A. S. R. 166. 10. Notes: 29 Am. Dec. 390; 19 Am. Rep. 90; 34 L.R.A. (N.S.) 31; 23 Eng. Rul. Cas. 440. 11. Note: 29 Am. Dec. 390. 12. Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347. See supra, par. 407, as to the effect of a levy of an execution or attachment by creditors of the buyer. 13. Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347. formerly occupied by the buyer, but at the time in the possession of a sheriff by virtue of seizure under attachment, is not a delivery to the buyer, and a levy thereafter made cannot affect the seller's right of stoppage in transitu.14 418. Notice of Arrival; Warehousing Goods; Landing on Wharf.--The mere act of the carrier or middleman in giving notice to the buyer of the arrival of the goods is not a termination of the transit.15 So a delivery by the carrier to a warehouseman, not as the buyer's agent, but in the ordinary course of business as a middleman, is not a delivery to the buyer, and therefore the mere transfer of the goods to a warehouse at the end of the route to wait the payment of charges is not, ipso facto, a delivery so as to cut off the right of stoppage in transitu. Where the warehouseman receives the property, as agent for the carrier, to hold until the freight and other charges are paid, the transitus still continues.16 And according to the better view where the carrier deposits the goods in its own warehouse or depot at the point of destination the transit is not deemed ended,1 even though the buyer is notified by the carrier of the arrival and warehousing of the goods, if the buyer has not assented thereto.18 It has been held, however, that it is otherwise where the buyer has assented to the warehousing of the goods.19 Ordinarily the entry of the goods at the custom house without paying the duties does not terminate the transit,20 and so the possession of the goods by officers of the customs prior to entry is not such possession by the buyer as will terminate the right of stoppage.1 And it has been held that goods stored in the custom house in consequence of the loss of the invoice are subject to the seller's right of stoppage, though the freight is paid, because by reason of the loss of the invoice they could not be entered at the custom house, and the buyer could not therefore obtain actual possession. The question whether the landing of the goods on a wharf terminates the transit seems to depend on whether the duties of the carrier with respect to the goods have 14. Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347. As to the exercise of the right of stoppage as against levying creditors of the buyer, see supra, par. 407. 15. 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; Wheeling, etc., R. Co. v. Koontz, 61 Ohio St. 551, 56 N. E. 471, 76 A. S. R. 435; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. Note: 23 Eng. Rul. Cas. 431. etc., R. Co., 179 Mass. 228, 60 N. E. 548, 88 A. S. R. 375, 54 L.R.A. 435; Calahan v. Babcock, 21 Ohio St. 281, 8 Am. Rep. 63; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351. 432. Note: 23 Eng. Rul. Cas. 429, 18. Note: 29 Am. Dec. 391. 19. Note: 29 Am. Dec. 391. 20. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. Notes: 29 Am. Dec. 391; 1 A. S. R. 313; 23 Eng. Rul. Cas. 432. 1. Note: 11 L.R.A. 348. 2. Note: 29 Am. Dec. 391. |