livery. Also, if he had allowed the mater to rest in that situation for a substantial time before doing anything to recall this act, it might be necessary to submit to the jury the question whether a delivery had not been so consummated that it could not thereafter be avoided. But he pursued neither of these courses. After the stamping of the bill of lading, he "thereupon,"—that is, immediately-examined the oats and made what, if then permissible, was a clear and decisive refusal of acceptance of them from the buyer and of delivery from the carrier. It is only by separating these steps and regarding them as divisible and distinct transactions that a delivery can be made out. We do not think they ought to be thus separated, but that they were so closely connected in point of time and otherwise that they should be given the effect of one connected transaction. This being done, it is clear that there was no delivery. * * *

In accordance with these views, the judgment should be reversed and judgment directed in favor of plaintiff against the defendant New York Central & Hudson River Railroad Company, for the sum of $287.85, with any interest.

NORFOLK HARDWOOD CO. v. NEW YORK CENT. & H. R. R. CO. (Supreme Judicial Court of Massachusetts, 1909. 202 Mass. 160, S8 N. E. 664. Action by the Norfolk Hardwood Company against the New York Central & Hudson River Railroad Company. Judgment for defendant, and plaintiff appeals.

Plaintiff shipped certain lumber ordered by the Cambridge Lumber Company, consigned to plaintiff's order at East Cambridge, where it arrived August 3, 1904, over defendant's road. On July 21st plaintiff wrote the lumber company inclosing an invoice. On July 27th a waybill of defendant road was sent to plaintiff, showing freight, etc., and on October 4th defendant's agent wrote plaintiff requiring that the car be promptly unloaded, to which plaintiff replied that the car was intended for the Cambridge Lumber Company, and that the bill of lading called for Boston & Maine delivery, after which plaintiff directed the agent to deliver the lumber to the lumber company. The lumber company immediately directed that the lumber be stored, after which plaintiff received the lumber company's 90-day note therefor. and the lumber company, without paying the freight, had defendant reship the lumber for it to another town.

SHELDON, J. This action has been argued for the plaintiff as if it presented merely a question of the right of stoppage in transitu, but we are of opinion that this is not the case. The plaintiff, although it accepted the order of the Cambridge Lumber Company for the lumber in question, and undertook to forward the lumber accordingly, yet when it came to ship the goods consigned them to itself and took a bill of lading running to itself. It thus, as between itself and the purchaser, retained the possession and control of the lumber, and retained also its vendor's lien for the agreed price. * * * If the plaintiff has not lost this lien by parting with the possession of the goods, it can hold them in spite of the credit agreed to be given, upon the insolvency of the purchaser. * But if a delivery has been made to the purchaser by the authority of the plaintiff, then its lien, depending solely upon the possession of the property, is gone, and the plaintiff cannot hold the goods. *

* *

*

When the car containing this lumber arrived at East Cambridge on August 4, 1904, the defendant's agent notified the plaintiff thereof, and the plaintiff on August 6th informed the agent by letter that the car was intended for the Cambridge Lumber Company, which is hereinafter called the purchaser; and on August 12th, the plaintiff, at the request of the defendant's agent, expressly authorized delivery to be made to the purchaser. In the meantime, on August 8th, the defendant, at the request of the purchaser, forwarded the car containing the lumber from East Cambridge to the defendant's Huntington avenue storehouse in Boston, and issued to the purchaser a local waybill naming the purchaser as the consignee. On August 10th the purchaser requested the defendant to store these and some other goods; and the defendant did accordingly store them in the name of the purchaser in its storehouse aforesaid, where they remained until taken by the plaintiff on this writ of replevin.

There can be no doubt upon these facts that the property, subject to the defendant's lien for its proper charges, was delivered by the defendant to the purchaser with the consent and authority of the plaintiff; and the plaintiff's lien for the price of the lumber was thus destroyed. * * The plaintiff voluntarily gave up its lien upon the property; it does not rest its claim upon the allegation that this was procured by means of any fraud practiced upon it; and it cannot now reinstate itself in its original position.

*

If, however, it were necessary to pass upon that question, we should be obliged to hold that the plaintiff had failed to show any right to stop these goods in transitu. The goods were to be transported to East Cambridge, and, according to the final directions of the plaintiff, to be there delivered to the purchaser. The right of stoppage in transitu would continue until the goods were delivered to the purchaser, or until, by some new arrangement between the carrier and the purchaser, the former had recognized the title of the latter, and attorned to it, and agreed to hold the goods, not merely as carrier or as a warehouseman pending a complete delivery to the purchaser, but as agent for the purchaser under a new contract made and assented to by both the carrier and the purchaser. * * * The fact that the. carrier's prior charges have not been paid, although strong evidence that no such new contract has been made, is not decisive. * *

But here, although the defendant's charges remained unpaid, it yet did make a new agreement with the purchaser for the further transportation of these goods to a neighboring city; and it carried out that agreement. There was more than a mere storage of the goods for the convenience of the purchaser, which would not have terminated the transit. There was a recognition of the purchaser as owner, and a new transit, made under a new agreement with the purchaser, to a new destination, for the expenses of which the plaintiff personally could not have been held. If this new agreement had been made by the purchaser with another railroad company, which had paid the defendant's charges and made the new transportation, there could be no question that the original transit had ended, even though this new carrier held the goods not only for the freight due to itself, but also for the past charges of the former carriers which it would have satisfied. The original transit is at an end when the goods have reached. their original destination; and when after this they are actually sent by the purchaser to a new destination, the right of stoppage in transitu

is as effectually destroyed as if he had taken manual possession of them and placed them in his own warehouse. This has been clearly stated by Lord Esher, in Bethell v. Clark, 20 Q. B. D. 615, 617, in which it was held that the original transit was not terminated: "There has been a difficulty in some cases where the question was whether the original transit was at an end and a fresh transit had begun. The way in which that question has been dealt with is this: Where the transit is a transit which has been caused either by the terms of the contract or by the directions of the purchaser to the vendor, the right of stoppage in transitu exists; but if the goods are not in the hands of the carrier by reason either of the terms of the contract or of the directions of the purchaser to the vendor, but are in transitu afterwards in consequence of fresh directions given by the purchaser for a new transit, then such transit is no part of the original transit, and the right to stop is gone." ** * It can make no difference in principle that the new directions were given by the purchaser to the original carrier, and that the new transit was made over the lines of the original carrier. * *

*

Accordingly the plaintiff had no right of stoppage in transitu when it replevied these goods, and no right to their possession, and cannot maintain this action. * * *

The judgment for the defendant must be affirmed.

Would a sale by the consignee, prior to notice from the seller to the carrier to stop the goods, and while the goods were still in transit, cut off the right of the seller to regain possession? It would follow, from the general rule that goods may be stopped at any time during the transit, that such resale, even to an innocent purchaser, would not affect the seller's rights. The Sales Act, however, expressly covers this point:

Section 62. Subject to the provisions of this act, the unpaid seller's right of lien or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto.

Where there is a negotiable bill of lading outstanding, the situation is quite different. As long as the seller retains possession of the bill of lading, there is no need for him to resort to this right. of stoppage in transitu; but, if he should deliver the bill of lading to the buyer, then his only remedy would be to exercise the right of stoppage in transitu. But the right under these circumstances is a very delicate one. It is available only so long as the bill of lading is in the hands of the buyer, and it is not effective, even then, if, subsequent to the stoppage, the buyer negotiates the bill of lading to an innocent purchaser. With respect to these matters the Sales Act provides:

Section 62. If, however, a negotiable document of title has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier, or

other bailee who issued such document, of the seller's claim to a lien or right of stoppage in transitu.

RUMMELL et al. v. BLANCHARD et al.

(Supreme Court of New York, Appellate Division, 1915. 167 App. Div. 654, 153 N. Y. Supp. 159.)

Action by Jacob Rummell and another against Archibald Blanchard and another, trustees in bankruptcy of Alden & Co., a bankrupt, and another. From a judgment for defendant, plaintiffs appeal.

Action of replevin. In fulfillment of a contract dated January 27, 1913, for the sale or exchange of certain cases of shellac which Alden. & Co. were to return at a later date, plaintiffs indorsed and delivered to Alden & Co, a negotiable warehouse receipt for the cases in question. On February 14th Alden & Co. tendered the receipt to the warehouseman and demanded new receipts running in their name. This demand was refused on the ground that the warehouse charges were unpaid, which payment Alden & Co. failed or declined to make. On their appointment, the indorsed receipt came into the possession of the defendants, trustees in bankruptcy of Alden & Co., from whom plaintiffs sought in this action to recover the goods.

HOTCHKISS, J. The sole question is whether plaintiffs lost their sellers' lien by indorsing and delivering the negotiable receipt to Alden & Co. Nearly 70 years ago, in the course of his opinion in McEwan v. Smith, 2 H. L. Cas. 309, Lord Campbell said (page 328): "There can be no doubt that, after sale of the goods, the vendor has a lien on them for the price, so long as they remain in his possession, and this is a doctrine as old as any doctrine connected with the purchase and sale of goods."

It is scarcely necessary to cite authorities to show that this ancient lien existed practically unchanged at the time of the codification in this state of the law of personal property, including bills of lading and warehouse receipts, and that it depended upon possession. * * * If the buyer once gets both title and possession from the seller, at common law the lien of the latter is gone. * * *

Prior to the legislation to which I have referred, it was uniformly held that bills of lading were in and of themselves muniments of title sufficient to vest title as well as possession and absolute control of the goods in him to whose order they were drawn. *** These

instruments, when indorsed and delivered for value, also vested in the indorsee to whom they were delivered, with intent to pass title, the same ownership and control of the goods as that held by him to whose order they originally ran. In this respect warehouse receipts were the same as bills of lading. * *

The presumption is that Alden & Co. accepted the bill of lading in full satisfaction of their contract to sell and deliver. * * * These principles have been incorporated into the Personal Property Law and the Warehouse Receipts Act. * * * Section 137, art. 5, of the Personal Property Law, entitled "Sales of Goods," provides that the unpaid seller of goods loses his lien thereon "when the buyer or his agent lawfully obtains possession of the goods." Section 125 of the General Business Law provides that "a person to whom a negotiable receipt has been duly negotiated acquires thereby," not only the title.

the one negotiating the receipt or the depositor of the goods, to whose order they were by the terms of the receipt to be delivered, had or could convey, but also "the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman had contracted directly with him.*

* * *

If such an instrument has been issued, no seller's lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom such document has been negotiated, etc. Williston explains in his treatise on sales (page 921), these provisions were intended to protect a purchaser for value without notice after the seller had stopped the goods either by virtue of his right of stoppage in transitu or his seller's lien. It must be clear that they could not have been intended to work such a radical change in the law as would be the result if we accepted the appellants' argument that they applied to sustain a lien of a seller in the situation of these plaintiffs. The order should be affirmed.

SECTION 4.-UNPAID SELLER'S LIEN

All of the preceding portion of this chapter was devoted to the explanation of the circumstances under which an unpaid seller would have the rights of lien, of resale, and of rescission of the contract. We may now turn our attention to the discussion of the nature of these rights and as to the manner in which they may be exercised.

The prominent feature of a lien is that the seller in possession of the goods, or one who has regained possession by exercising his right of stoppage in transitu, has a right to continue to hold the goods, and by so doing is not guilty of any breach of contract with the buyer. The following cases illustrate the effect of the right of lien, and also one way in which the lien may be lost.

CAPUANO v. ITALIAN IMPORTING CO. OF NEW YORK. (Supreme Court of New York, Appellate Term, 1915. 89 Misc. Rep. 449, 151 N. Y. Supp. 994.)

Replevin by Guiseppe Capuano against the Italian Importing Company of New York. From judgment for defendant, and from an order denying new trial, plaintiff appeals.

PENDLETON, J. The action is in replevin. The answer is a general denial, and sets up as a separate affirmative defense an alleged vendor's lien on the goods and the right to possession thereunder. It was apparently conceded at the trial, and nothing to the contrary is now claimed, that defendant bought the goods, with others, from one Andreis, and paid for them under an agreement that any not sold by the end of the season Andreis would take back and pay defendant therefor the invoice price, plus any duty paid. At the end of the season the goods in question remained unsold, and defendant demanded of Andreis under the agreement payment therefor of the invoice. price, plus the duty paid. Andreis refused, and defendant thereupon