Where the goods are in the hands of a warehouseman or other bailee the lien is not lost by the mere sale or notice thereof, until the bailee consents to attorn to the buyer.13 Such consent may be given in advance.14 The indorsement and delivery of documents of title releases the seller's lien,15 subject to the right of stoppage in transitu in case of insolvency. 16 Constructive delivery does not divest the lien unless the seller has estopped himself to claim the lien." The seller may expressly reserve a lien after delivery, in which case his rights will depend upon the terms of the contract.18 There may be a delivery not involving a change of actual physical possession sufficient to pass title which will not divest by himself and his agents had taken it into his actual possession and had incorporated with it the labor bestowed by him in preparing it for sale. There was, therefore, such a change of possession from the vendor to the vendee as to defeat any right of lien in the vendor." Douglas v. Shumway, 79 Mass. (13 Gray) 498. See Upson v. Holmes, 51 Conn. 500. "In cutting and removing timber from the land of another at an agreed price, and for the purpose of being sawed into boards, no lien, without a special contract therefor, can be acquired. In cases of liens of the above description, as at common law, in order to the continuance of the lien, it was and is indispensable that it should be accompanied by possession. The moment the possession was voluntarily surrendered, the lien was gone." Oakes v. Moore, 24 Me. 214, 219. 13. Harman v. Anderson, 2 Camp. 243; Bentall v. Burn, 3 B. & C. 423; Lackington v. Atherton, 7 M. & G. 360; Farina v. Home (1846), 16 M. & W. 119; Godts v. Rose (1855), 17 C. B. 229; Bill v. Bament, 9 M. & W. 36; Lucas v. Dorrien, 7 Taunt. 277, 278; Woodley v. Coventry, 2 H. & C. 164; 2 Mechem on Sales, § 1493; Benjamin on Sales, § 803; 1 Jones on Liens, 829. 14. 2 Mechem on Sales, § 1494. 15. 2 Mechem on Sales, § 1498; Benjamin on Sales, § 813; 1 Jones on Liens, 823. Negotiation of a negotiable warehouse receipt defeats seller's lien, whether such negotiation be prior or subsequent to notice to the warehouseman asserting a lien. Pub. Acts of Conn.. 1907, Ch. 220, sec. 49. A person gave a receipted bill of parcels of goods to another and a certificate that he held them for him on storage. The lien was lost. Chapman v. Searle, 20 Mass. (3 Pick.) 38. 16. 2 Mechem on Sales, § 1498; Benjamin on Sales, § 813. See Allen v. Jones, 24 Fed. 11. 17. 2 Mechem on Sales, § 1501 et seq; Benjamin on Sales, § 809 et seq. 18. 2 Mechem on Sales, §§ 1484, 1491; Benjamin on Sales, § 802. the seller of his lien."9 Temporarily entrusting the goods to the buyer for examination, or any other special purpose,20 which may be shown by a usage of trade,21 does not release the lien.22 So if the buyer takes custody of the goods as bailee for the seller,23 or the seller retains custody as bailee for the buyer,24 the lien is not lost. If the buyer obtains possession by fraud, the seller, unless he has estopped himself, or waived his right,25 may recover possession by virtue of his lien from any one but a bona fide purchaser for value.26 The lien is not lost in a delivery on condition precedent, unless and until the buyer performs the condition.27 (c) By waiver. The unpaid seller may waive his lien for the price either expressly or impliedly.28 A waiver may be inferred from the express provision for other security for the price than the goods.29 A waiver may also be inferred from any facts showing the vendor's intention not to rely upon the goods as security 19. Owens V. Weedman, 82 III. 409; Perrine V. Barnard, 142 Ind. 442, 448; Thompson v. B. & O. R. R. Co., 28 Md. 396; Arnold v. Delano, 58 Mass. (4 Cush.) 33; Sigerson v. Kahmann, 39 Mo. 206, 209; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71; Wanamaker v. Yerkes, 70 Pa. St. 443; Goodal v. Skelton, 2 H. Bl. 316; Dixon v. Yates, 5 B. & Ad. 313; Curtin v. Isaacsen, 36 W. Va. 391; Simmons v. Swift (1856), 5 B. & C. 857; Townley v. Crump, 4 A. & E. 58; Proctor v. Jones, 2 C. & P. 532; Boulter v. Arnott, 1 C. & M. 333; 2 Mechem on Sales, § 1485; Benjamin on Sales, § 807. 20. Haskins v. Warren, 115 Mass. 514; 2 Mechem on Sales, § 1488. 21. Haskins v. Warren, 115 Mass. 514, 534. 22. But where the seller of goods on a public wharf or the premises of a third person allows the buyer to measure and mark the goods, and expend money in preparing them for his use, it has been held such an actual delivery as to divest the seller's lien. Cooper v. Bill (1865), 3 H. & C. 722; Tansley v. Turner, 2 Bing. (N. C.) 151. 23. Marseilles Mfg. Co. v. Morgan, 12 Neb. 66; Caldwell v. Tutt, 78 Tenn. (10 Lea) 258; Tempest v. Fitzgerald, 3 B. & Ald. 680; Marvin v. Wallis, 6 El. & Bl. 726; Dodsley v. Varley (1840), 12 A. & E. 632, 634; Benjamin on Sales, § 807. 24. 2 Mechem on Sales, § 1847. See sec. 54. 25. Consenting to a sub-sale is a waiver. Knights v. Wiffen (1870), L. R. 5 Q. B. 660. 26. Manning v. Hollenbeck, 27 Wis. 202; 2 Mechem on Sales, § 1490. 27. Benjamin on Sales, § 808. 28. Houlditch v. Desanges (1818), 2 Stark. 337; Scrivener V. Great Northern Ry. (1871), 9 W. R. 388; 2 Mechem on Sales, § 1477; Benjamin on Sales, § 797. relin Waiver is the intentional quishment of a known right. Hoxie v. Home Ins. Co., 32 Conn. 21, 40; New Haven Wire Co. Cases, 57 Conn. 352, 392, 393, 5 L. R. A. 300. 29. Pickett v. Bullock, 52 N. H. 354; Angus v. McLachlan (1883), 23 Ch. D. 330; Chambers v. Davidson, L. R. 1 P. C. 296. "The taking of a distinct security, either in the shape of real or personal property, from the vendee, or taking 31 for the price,30 as a voluntary and unconditional delivery of the goods, or giving terms of credit without reserving possession;32 taking a note or bill of exchange in conditional payment, which is but another form of giving a term of credit,33 unless payable on demand. Waiver by giving credit is conditional upon the buyer's keeping his credit good, and revives if he becomes insolvent during the period of credit,35 and at the expiration of the period of credit or the maturity of the note or bill, whether insolvent or not. 36 (2.) The unpaid seller of goods having a lien thereon does not lose his lien by reason only that he has obtained judgment or decree for the price of the goods.37 Such an action must be for "goods bargained and sold," and not for "goods sold and delivered."39 the responsibility of a third person, is an implied waiver of the lien. Gillman v. Brown, 1 Mason (U. S. C. C.), 191; Nairn v. Prowse, 6 Ves. Jr. 752." Dudley v. Dickson, 14 N. J. Eq. 252, 253. The reservation of an express lien excludes an implied one. Leith's Estate (1866), L. R. 1 C. P. 305. 30. 2 Mechem on Sales, § 1478; Benjamin on Sales, § 797; 1 Jones on Liens, § 848. Whether an attachment of property is a relinquishment of the lien quaere. Lloyd v. Holly, 8 Conn. 491, 493, 494. 31. See sec. 50 (b). An unqualified delivery of goods sold for cash is a release or waiver of the right of the seller to the goods, whether this right is in the nature of a condition affecting the title or only a lien for the price. Haskins v. Warren, 115 Mass. 514, 533. Citing Farlow v. Ellis, 81 Mass. (15 Gray) 229; Smith v. Dennie, 23 Mass. (6 Pick.) 262; Carleton v. Sumner, 21 Mass. (4 Pick.) 516. 32. McElwee v. Metropolitan Lumber Co., 69 Fed. 302; Arnold v. Delano, 58 Mass. (4 Cush.) 33; 2 Mechem on Sales, § 1479; Benjamin on Sales, § 797; 1 Jones on Liens, § 853. 33. McElwee v. Métropolitan Lumber Co., 69 Fed. 302; Leonard v. Davis, 66 U. S. (1 Black) 476; McNail v. Zeigler, 68 Ill. 224; McCraw v. Gilmer, 83 N. C. 162; Thompson v. Wedge, 50 Wis. 642; Chambers v. Davidson, L. R. 1 P. C. 296; Hewison v. Guthrie, 2 Bing. (N. C.) 755; Horncastle v. Farren, 3 B. & Ald. 497; Griffiths v. Perry (1859), 28 L. J. Q. B. 204, 207; Valpy v. Oakeley (1851), 16 Q. B. 941, 951; 1 Jones on Liens, § 850. "The taking of a note or bond of the purchaser for the unpaid purchase money will not impair the lien. Van Doren v. Todd, 3 N. J. Eq. (2 Green's Ch.) 397; Brinkerhoff v. Vansciven, 4 N. J. Eq. (3 Green's Ch.) 251; Garson v. Green, 1 Johns. Ch. (N. Y.) 308; 4 Kent's Com. 152." Dudley v. Dickson, 14 N. J. Eq. 252, 253. 34. 2 Mechem on Sales, § 1481; Benjamin on Sales, § 798; 1 Jones on Liens, § 854. 35. See sec. 54, 1, c. 37. 2 Mechem on Sales, § 1670. 39. 2 Mechem on Sales, § 1665. A tender of the price by the seller divests the lien whether or not the seller accepts." 40 STOPPAGE IN TRANSITU. Section 57. Seller May Stop Goods on Buyer's Insolvency.Subject to the provisions of this Act, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping the same in transitu, that is to say, he may resume posssession of the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to said goods as he would have had if he had never parted with the possession. AGAINST WHOM EXERCISED.-The right of stoppage in transitu1 may be exercised only when the seller is unpaid, and the price is such a delivery as will vest the property in the goods in the defendant, but such a delivery as will divest himself of all lien upon the goods and enable the defendant to maintain trover for them without paying or offering to pay for them." Greenleaf v. Gallagher, 93 Me. 549. Citing Atwood v. Lucas, 53 Me. 508; Tufts v. Grewer, 83 Me. 407, 412; Moody v. Brown, 34 Me. 107; Edwards v. R. R. Co., 54 Me. 105; Means v. Williamson, 37 Me. 556; Pettengill v. Merrill, 47 Me. 109; Gooch v. Holmes, 41 Me. 523. Contra: Leavy v. Kinsella, 39 Conn. 50, 53. 40. Cory v. Barnes, 63 Vt. 456; Martindale v. Smith, 12 Q. B. 389, 395; 2 Mechem on Sales, § 1522. 1. This remedy is a right against the goods themselves. "If they arrive injured and damaged in bulk or quality, the right to stop in transitu is so far impaired; there is no contract or agreement which entitles the vendor to go beyond those goods in the state in which they arrive, and to claim moneys which have been paid by the underwriters to the purchasers of the goods in respect of their loss by the non-arrival of their property." Berndtson v. Strang (1868), L. R. 3 Ch. App. 588, 591, L. R. 4 Eq. 481; Phelps v. Comber (1885), 29 Ch. D. 813, 826, C. A. 2. Wood v. Roach, 2 U. S. (2 Dall.) 180; Williams v. Dotterer, 111 La. 822. For what constitutes an unpaid seller, see sec. 52. An agent may stop goods in transitu either by express or implied authority, or as a part of his general authority to transact his principal's business. Reynolds v. B. & M. Ry. Co., 43 N. H. 580; Newhall v. Vargas, 13 Me. 93; Bell v. Moss (Pa.), 5 Whart. 189; Chandler v. Fulton, 10 Tex. 2; Whitehead v. Anderson, 9 M. & W. 518. 3 due from the consignee, the property has passed to the buyer,* the goods have been shipped, and the buyer is or becomes insolvent.6 Insolvency, as in the case of the vendor's lien, means inability to pay one's debts. The buyer need not be actually insolvent. 3. See sec. 52. 4. Rogers v. Thomas, 20 Conn. 53, 58; Gibson v. Carruthers (1841), 8 M. & W. 321; 2 Mechem on Sales, § 1527. "The vendors being unpaid and the purchasers having become insolvent, according to the law merchant, the vendors had a right to stop the goods in transitu, although the property in such goods might have passed to the purchasers. The doctrine of stoppage in transitu has always been construed favorably to the vendor. Bethell v. Clark (1888), 20 Q. B. D. 615, 617 C. A. If the property has not passed, the seller has a right of lien or reservation of jus disponendi. Bolton v. Lanc. & York. Ry. Co. (1866), L. R. 1 C. P. 439. At common law, as well as under the Act, the right of retention extended to executory and executed contracts on the buyer's insolvency. Griffiths v. Perry (1859), 1 El. & El. 680, 28 L. J. Q. B. 204; Ex p. Chalmers (1873), L. R. 8 Ch. App. 289, 292. "The right of stoppage in transitu, however, never applies to any cases, excepting those where by a sale, the right of property passes to the vendee, and also the right of possession (subject to be defeated only by the exercise of that right)." Rogers v. Thomas, 20 Conn. 53, 58. 5. See sec. 58. 6. Wood v. Roach, 2 U. S. (2 Dall.) 180; The St. Joze Indians, 14 U. S. (1 Wheat.) 208; Loeb v. Peters, 63 Ala. 243; Smith v. Barker, 102 Ala. 679; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496; O'Brien v. Norris, 16 Md. 122; More v. Lott, 13 Nev. 376; Farrell v. R. R. Co., 102 N. C. 390; Frame v. Ore. Liquor Co., 48 Ore. 272; Wilmshurst v. Bowker, 7 M. & G. 882; 2 Mechem on Sales, § 1538; Benjamin on Sales, § 837; 1 Jones on Liens, § 884. "Under the law of stoppage in transitu, such a right of resumption (of possession) is limited to cases of the vendee's bankruptcy or insolvency." Rogers v. Thomas, 20 Conn. 53, 59. Even if the sale is an unconditional one upon credit, the insolvency of the vendee is a sufficient justification for exercising the right of stoppage in transitu. Keeler v. Goodwin, 111 Mass. 490, 492. Citing Arnold v. Delano, 58 Mass. (4 Cush.) 33; Stubbs v. Lund, 7 Mass. 453; Naylor v. Dennie, 25 Mass. (8 Pick.) 198. 7. Rex Buggy Co. v. Ross, 80 Ark. 388; Secomb V. Nutt, 53 Ky. (14 B. Mon.) 261; O'Brien v. Norris, 16 Md. 122; Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 12; Rogers v. Whitehouse, 71 Me. 222; Inslee v. Lane, 57 N. H. 454, 458; Benedict v. Schaettle, 12 Ohio St. 515; Bloomingdale v. Memphis, etc., R. R. Co., 74 Tenn. (6 Lea) 616; Parker v. Gossage, 2 Cm. & R. 617; Biddlecombe v. Bond, 4 A. & E. 332; Billson v. Crofts, 15 Eq. 314; James v. Griffin, 2 M. & W. 623; Edwards v. Brewer, 2 M. & W. 375; 2 Mechem on Sales, § 1539; Benjamin on Sales, § 837. "But the fact that he (the vendee) had not property enough to make immediate payment of all claims against him falls short of showing that he was then insolvent. It often happens that men of large property, much more than sufficient to pay all demands against them in the ordinary course of business, have not property enough for the purpose if all their creditors should at once press for |