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. 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. 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 v. 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. 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. 9. Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49. But see Ocean 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,17 even though the buyer is noti fied 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. Note: 23 Eng. Rul. Cas. 429, 432. 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. B. 313; 23 Eng. Rul. Cas. 432. 1. Note: 11 L.R.A. 348. 2. Note: 29 Am. Dec. 391 thereby ceased and he has relinquished all claim on the goods. It has been held that though the goods were landed on the wharf owned by the carrier and the freight was paid, this itself does not terminate the right of stoppage if the goods have not been taken away by the buyer. On the other hand it has been held that the landing of the goods upon a wharf is a delivery, terminating the transit and divesting the right of stoppage, when by such landing all the duties and responsibilities of the carrier in regard to the goods ceased, and no duty or responsibility was cast upon the wharfinger, and the goods lay on the wharf, subject to the control and direction of the buyer only, and it appears that merchants in the course of business received their goods. at the wharf.5 419. Interception during Transit; Continuity of Original Shipment; Reshipment.-The buyer may intercept the goods short of their ultimate destination, and if he does so and takes actual or constructive possession, the delivery is complete and the right of stoppage is gone. The right does not terminate with the possession of the initial carrier, but continues during the possession of the successive connecting carriers or the like, so long as the property is on its continuous and uninterrupted way to the buyer. So where the goods are in the hands of a wharfinger, warehouseman, or forwarder at an intermediate stage between the original inception of the transit and its termination, they are subject to the right of stoppage because such person is merely an agent to expedite the carriage.8 It has been held that while the goods are on drays of a truckman in process of being carried from a railway depot to the store of the buyer, they are still subject to the right of stoppage though the placing of the goods on such drays was done at the instance of the buyer." Where the property has reached its original ultimate destination, and is reshipped by the buyer, without taking actual possession, to another destination, the better view is that the original transit has come to a complete end and with it the seller's right of stoppage.10 Thus it has been held that a seller has no right of stoppage in transitu after his buyer has surrendered the bill of lading. to the railroad company at the destination named therein, has rebilled 31. Notes: 29 Am. Dec. 387; 34 L.R.A. 8. Hepp v. Glover, 15 La. 461, 35 Notes: 29 Am. Dec. 389; 34 L.R.A. (N.S.) 32; 23 Eng. Rul. Cas. 440. 9. Harris v. Tenney, 85 Tex. 254, 20 S. W. 82, 34 A. S. R. 796. 10. Notes: 34 L.R.A.(N.S.) 31; 23 Eng. Rul. Cas. 429, 431. the goods to a subpurchaser at another place and they have gone on to that destination.11 On the other hand where the buyer, without taking actual possession at the point of destination, sold the goods without indorsement of the bill of lading, and gave the subpurchaser an order on the carrier for the delivery of the goods, and the carrier on presentation of such order promised to reship the goods as directed by the subpurchaser, giving him a receipt to such effect, it was held that there was not such a termination of the original transit, the goods not having in fact gone on to the new destination, as would terminate the original seller's right of stoppage.19 420. Delivery of Part.-The delivery by the carrier to the buyer or his assignee of a part of the goods does not necessarily terminate the seller's right of stoppage as to the balance,18 even where property sold is in the custody of a warehouseman and a part is delivered by him to the buyer with the consent of the seller.14 It is otherwise, however, where the delivery of the part is intended by the carrier as a delivery of the whole and the taking of possession by the buyer as the exercise of dominion over the whole.15 Where logs are being driven down a river by a log driving company the fact that some of them floating ahead of the general drive have reached the actual possession of the buyer does not give him such a constructive possession of the others as to terminate the seller's right of stoppage. 421. Exercise of Right Generally. The mere insolvency of a buyer does not of itself amount to a stoppage in transitu; there must be some act on the part of the seller indicative of his intention to repossess himself of the goods. The right is merely optional with the seller to repossess himself of the goods, and it is ineffectual unless actually exercised.17 Mere notice to the buyer of the exercise of the right of stoppage is insufficient.18 So a buyer who, after goods have been shipped to him, by fraudulent representations as to his solvency 11. In re W. A. Paterson Co., 186 Fed. 629, 108 C. C. A. 493, 34 L.R.A. (N.S.) 31. 12. Branan v. Atlantic, etc., R. Co., 108 Ga. 70, 33 S. E. 836, 75 A. S. R. 26. 13. Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. 707, 30 A. S. R. 164; 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. 27 E. C. L. 86, 39 Rev. Rep. 489, 23 Eng. Rul. Cas. 385. 15. 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. Note: 29 Am. Dec. 391. 16. Johnson v. Eveleth, 93 Me. 306, 45 Atl. 35, 48 L.R.A. 50. 17. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Mactier v. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dec. 262; People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530. Notes: 29 Am. Dec. 394; 3 L.R.A. Notes: 29 Am. Dec. 391; 19 Am. 648. Rep. 91; 23 Eng. Rul. Cas. 433. 18. Notes: 29 Am. Dec. 394; 1 A. 14. Dixon v. Yates, 5 B. & Ad. 313, S. R. 312; 23 Eng. Rul. Cas. 415. |