PART V. RIGHTS OF UNPAID SELLER AGAINST THE GOODS. I. LIEN. 188. As we have seen, it is not essential in order to transfer the property that there should be either delivery or payment. The intention of the parties passes the title, and, although the property has passed, nevertheless the vendor is under no obligation to yield possession, or to deliver, until payment, or tender, by the vendee. This right of the vendor to hold the goods until he is paid, although the title has passed, is called a vendor's lien. This right of lien, together with the right of stoppage in transitu, in case of the insolvency of the vendee, is often treated under titles referring to the breach of the contract, but neither right necessarily implies a breach of the contract, and it is more logical to consider them apart. from the remedies of the vendor upon the breaking of the contract by the vendee. There is no lien unless the property has passed, for the very meaning of a lien is a right to retain in one's possession the goods of another until certain charges, costs or prices connected with the goods have been paid. In a vendor's lien, however, the. right covers only the PRICE, not charges, since any expense incurred by the vendor in storing or in keeping the goods becomes a personal charge against the vendee, and is not to be included within the lien. § 189. A lien is the very best kind of protection a seller can have. In general, a lien is superior to all other kinds of security. A lien is stronger than a debt, a law-suit or an attachment. A "set-off" cannot be balanced against it, neither is it affected by statutes of limitation. It is not lost by a sub-sale of the vendee, unless accompanied by a bill of lading or other transferable document of title. It is often said that liens are enforced by sale of the goods in order to satisfy the price. No vendor's lien, by its own force, carries with it the right to sell. Unless there be some statute (and such statutes are now common, especially in reference to perishable goods, and particularly applying to carriers' liens) authorizing the lienor to dispose of the goods, he holds them, in theory, in the custody of the law. Upon breach of the contract by the vendee, however, one of the remedies of the vendor, who still has the goods in his possession, is to sell the same, as we shall see in the next part of this work. This right, however, arises as a remedy upon the breach of the contract, and is not a sequence of the lien. The vendor may demand payment, as is his right, and, upon the refusal or neglect of the vendee to pay, he may then sell the goods, as agent for the vendee, basing, however, this right upon the breach by the vendee, and not upon his right of lien. The same principle also applies in stoppage in transitu. $ 190. The right of a seller to a lien may be waived by his agreement to give credit, although the goods remain in his possession. Upon the expiration of the term of credit, however, should the vendee then fail to pay, the lien revives. The insolvency, also, of the vendee, during the time given for credit, causes the lien to attach. Delivery of the goods, when unconditional, destroys, of course, the lien, since by its very nature it depends upon the possession of the goods by the vendor. If, however, only a part of the goods are delivered, the lien for the full amount of the price remains with the undelivered portion. In connection with the general subject of delivery, symbolic delivery by means of bills of lading, warehouse receipts, etc., was referred to. When such documents of title are delivered to the vendee, and by him transferred to bona fide purchasers, the lien of the vendor is lost. This principle is more frequently illustrated, however, in the doctrine of stoppage in transitu. The vendor may, of course, deliver the goods to a carrier, yet retain his lien by a reservation of the jus disponendi. Bloxam v. Sanders, 4 B. & C. 941. Wade v. Moffett, 21 Ill. 110. Burke v. Dunn (Mich.), 75 N. W. R. 931. Tuthill v. Skidmore, 124 N. Y. 148. Leavey v. Kinsella, 39 Conn. 50. McElwee v. Lumber Co., 69 Fed. R. 302. Ware River Co. v. Vibbard, 114 Mass. 447. Schmertz v. Dwyer, 53 Pa. St. 335. Muller v. Pondir, 55 N. Y. 325. Burton v. Curyea, 40 Ill. 320. 2. STOPPAGE IN TRANSITU. § 191. After the goods have been delivered into the actual possession of the vendee, the right of lien, as we have seen, is gone. Likewise when the goods have been delivered to a carrier, either by land or water, for transit, the lien, in general, is lost. Should the vendor learn, however, while the goods are in transit, of the insolvency of the vendee, the vendor may stop the goods, thereby restoring his lien. As was said before, this right of stoppage in transitu was unknown to the early common law. It is said to have been an ancient custom of merchants, a doctrine of the lex mercatoria, and Mr. Benjamin tells us1 that the earliest chancery case upon the subject was in 1690, and the first common-law recognition of the doctrine was in 1757. 1 Benjamin on Sales, § 829, note (b). |