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. 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.12 420. 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,13 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.16 421. 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. induces the seller to forgo his right of stoppage in transitu cannot be convicted of obtaining the goods by false pretenses, as the title had already passed to him at the time of his fraudulent pretenses.19 Actual seizure of the goods before they come into the hands of the buyer is not essential; a demand of the carrier, or notice to him to stop the goods, is sufficient and is the usual method of exercising the right; 20 and no particular form of notice and demand is required. A notice by the seller, without an express demand to redeliver the goods, is sufficient if the carrier or middleman is clearly informed that it is the intention and desire of the seller to exercise his right. If the goods are in the actual possession of a servant or agent of the carrier the notice must be given in time to enable the carrier with reasonable diligence to intercept the delivery by such servant or agent. The right of stoppage in transitu is not such an adverse right that it must be exercised against the will or consent of the buyer, and therefore the fact that it is exercised with the consent of the buyer is immaterial even as regards persons claiming under the buyer such as levying creditors; and the buyer may in effect exercise for the seller his right of stoppage by refusing, in case he becomes insolvent, to receive the goods, thereby prolonging the transitus.5 422. Effect of Exercise of Right Generally.-It has been a subject of dispute as to whether the right of an unpaid seller to stop goods in transitu is a right to rescind the contract, or a right to resume the lien lost by parting with the actual possession of the goods. The latter is unquestionably the better view, and may now be regarded without doubt as the settled doctrine and the exercise of the right does not operate to rescind the sale and revest the title in the seller. For this 19. People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530. 20. 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; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. 895, 1 A. S. R. 310; Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49; 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; Litt v. Cowley, 7 Taunt. 169, 17 Rev. Rep. 482, 23 Eng. Rul. Cas. 411. Notes: 29 Am. Dec. 394; 19 Am. Rep. 92; 1 A. S. R. 313; 23 Eng. Rul. Cas. 413. 1. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. 895, 1 A. 2. Jones v. Earl, 37 Cal. 630, 99 Am. Dec. 338. 3. See the following paragraph. 4. Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319. Note: 29 Am. Dec. 394. 5. Tufts v. Sylvester, 79 Me. 213, 9 Atl. 357, 1 A. S. R. 303; Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319. Notes: 29 Am. Dec. 392; 19 Am. Rep. 92; 23 Eng. Rul. Cas. 428. 6. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617; Johnson v. Eveleth, 93 Me. 306, 45 Atl. 35, 48 L.R.A. 50; reason if the buyer has paid a part of the price the exercise of the right of stoppage by the seller does not entitle the buyer to recover back such part payment, and the seller may after exercising his right of stoppage sue and recover the agreed price provided he is ready and willing to deliver the goods on payment; 8 or he may, after the exercise of the right, maintain an action for damages for the buyer's breach of the contract of purchase. The buyer may on payment or tender of the price unpaid recover the possession of the goods.10 423. Duty of Carrier or Middleman after Notice from Seller.-If the carrier refuses to redeliver possession to the seller after proper notice of the exercise of his right of stoppage in transitu and tender of the freight charges and the like, he will render himself liable to the seller in an action of trover or the seller may maintain replevin and thereby regain the possession.11 And if the carrier or middleman delivers the goods to the buyer notwithstanding proper notice from the seller in exercise of his right of stoppage, he will be liable to the seller for the resulting loss.12 It is held that a provision in the bill of lading limiting the liability of the carrier for loss or damage has no application to his liability to the seller for making delivery to the buyer after proper notice by the seller of his exercise of his right of stoppage.18 In order to impose liability on the carrier the notice not to deliver to the buyer must be given at such a time and under such circumstances as will enable the carrier, acting with proper diligence, to communi Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607; Cross v. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 A. S. R. 531; Patten's Appeal, 45 Pa. St. 151, 84 Am. Dec. 479; Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. 671, 12 A. S. R. 885; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 4 L. T. N. S. 454, 31 W. R. 125, 23 Eng. Rul. Cas. 399. Notes: 29 Am. Dec. 385; 19 Am. Rep. 87; 3 L.R.A. 648; 23 Eng. Rul. Cas. 410. 7. Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617; Hurd v. Bickford, 85 Me. 217, 27 Atl. 107, 35 A. S. R. 353. Note: 19 Am. Rep. 87. 8. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Patten's Appeal, 45 Pa. St. 151, 84 Am. Dec. 479. 9. Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617. As to the seller's action for damages for breach of con tract generally, see supra, par. 383 et seq. 10. Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617; Patten's Appeal, 45 Pa. St. 151, 84 Am. Dec. 479. Note: 19 Am. Rep. 87. 11. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; 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; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. 424, 57 A. S. R. 919, 33 L.R.A. 351. 12. Jones v. Earl, 37 Cal. 630, 99 Am. Dec. 338; Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. 895, 1 A. S. R. 310; Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. 65, 57 L.R.A. 527; Litt v. Cowley, 7 Taunt. 169, 17 Rev. Rep. 482, 23 Eng. Rul. Cas. 411. Note: 29 Am. Dec. 394. 13. Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. 65, 57 L.R.A. 527. cate with its servants in time to prevent delivery to the buyer.14 It follows from the rule as to the liability of the carrier to the seller that a nondelivery of goods by a common carrier is excused when the consignor exercises his right of stoppage in transitu, but such right must be possessed by the consignor before it can be invoked by the carrier as a defense for failure to deliver.15 If delivery to the buyer is made by the carrier notwithstanding proper notice from the seller, it is ineffectual to defeat the seller's rights, and he may recover the possession from the buyer or third persons claiming under him.16 In England it has been held that where due notice was given the carrier of the exercise by the buyer of his right of stoppage in transitu, the fact that the goods were inadvertently delivered by the carrier to the buyer and came thereafter into the hands of his assignee in bankruptcy will not prevent the seller from recovering them from the assignee; inasmuch as they did not come to the possession of the bankrupt with the consent of the seller, they are not in the order and disposition of the bankrupt. within the bankruptcy acts.17 If the goods have been sold by a factor and he disobeys the order of the seller to stop the goods in transit, he will be responsible to his principal for the resulting loss.18 424. Enforcement and Waiver of Right.-The effect of the exercise of the right of stoppage in transitu is to restore the seller to precisely the same position as if the property had never left his hands. He has the same rights with regard to it, and those rights may be enforced in the same way.19 The power of the chancellor to enforce the right has been upheld on the ground that the right is of an equitable origin, and its subsequent recognition and enforcement by courts of law do not divest the court of chancery of its jurisdiction and the lien of the seller can best be enforced in such courts.20 And where the goods in relation to which the right is asserted are in the custody and under the control of the chancellor, a part of them having been sold by his order, before the right was asserted, there seems to be a peculiar propriety in resorting to the same tribunal for the assertion and enforcement of the right.1 14. Langstaff v. Stix, 64 Miss. 171, 1 So. 97, 60 Am. Rep. 49; Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. 65, 57 L.R.A. 527; 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. 394; 19 Am. Rep. 92; 23 Eng. Rul. Cas. 411. 15. Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 A. S. R. 861. See CARRIERS, vol. 4, p. 848 et seq. 16. Notes: 29 Am. Dec. 394; 19 Am. Rep. 92. 17. Litt v. Cowley, 7 Taunt. 169, 17 Rev. Rep. 482, 23 Eng. Rul. Cas. 411. 18. Howatt v. Davis, 5 Munf. (Va.) 34, 7 Am. Dec. 681. 19. Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 A. S. R. 531. 20. Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439; Hause V. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; Hurd v. Bickford, 85 Me. 217, 27 Atl. 107, 35 A. S. R. 353. 1. Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377. |