vendor may replevin them or recover their value from the carrier in an action for conversion.27 L Section 58. When Goods Are In Transit.-(1.) Goods are in transit within the meaning of section fifty-seven (a.) From the time when they are delivered to a carrier by land or water, or other bailee for the purpose of transmission to the buyer until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee; (b.) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back. (2.) Goods are no longer in transit within the meaning of section fifty-seven (a.) If the buyer, or his agent in that behalf, obtains delivery of the goods before their arrival at the appointed destination; (b.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf, and continues in possession of them as bailee for the buyer, or his agent; and it is immaterial that a further destination for the goods may have been indicated by the buyer; (c.) If the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf. (3.) If goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case whether the goods are in the possession of the master as a carrier or as agent of the buyer. (4.) If part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement with the buyer to give up possession of the whole of the goods. 1. (a) CARRIER OR OTHER BAILEE.-Who may be.—The vendor may stop goods only while they are in transit. They are in 27. Arnold v. Carpenter, 16 R. I. 560; Thompson v. Trail, 2 C. & P. 334, 6 B. & C. 36. 1. 2 Mechem on Sales, § 1545; see sec. 57. transit so long as they are in the hands of some middleman or intermediary between the seller and the buyer for transportation.2 The intermediary may be a carrier, warehouseman, wharfinger, packer, or other depositary or forwarding agent. That the carrier is designated by the buyer, or is the buyer's purchasing agent,5 does not affect the seller's right to stop the goods. 2. 2 Mechem on Sales, § 1545; 1 Jones on Liens, § 902. "It is of the essence of the doctrine of stoppage in transitu that during the transitus the goods should be in the custody of some third person intermediate between the seller who has parted with and the buyer who has not yet acquired actual possession." Schotsmans v. Lanc. & York. Ry. Co., L. R. 2 Ch. App. 332. To the same effect are Gibson v. Carruthers (1841), 8 M. & W. 321, 328; Berndtson v. Strang (1868), L. R. 4 Eq. 481, L. R. 3 Ch. 588, 590; Ex parte Rosevear China Clay Co., 11 Ch. Div. 560. 3. 2 Mechem on Sales, § 1554; Benjamin on Salés, § 846; 1 Jones on Liens, §§ 922, 936. "It is not material whether the person in whose possession they are when the seller interposes his claim be a carrier, a warehouseman, a wharfinger, packer, or other depositáry, or an agent for the purpose of forwarding, nor by which of the parties to the sale he was employed. He may be the agent of the purchaser, designated, paid, and employed by him, yet if the purpose of his employment is to expedite the property towards its destination, or to aid those engaged in forwarding it, the seller's right to stay the final delivery continues." Harris v. Pratt, 17 N. Y. 249, 252, 253. 4. Harris v. Pratt, 17 N. Y. 249; Holst v. Pownall, 1 Esp. 240; Hodgson v. Loy (1797), 7 T. R. 440, Jackson v. Nichol, 5 Bing. (N. C.) 508; Ellis v. Hunt, 3 T. R. 464, 466; Berndtson v. Strang, 4 Eq. 481, 3 3 Ch. 588; Ex parte Rosevear China Clay Co., 11 Ch. D. 560, C. A.; Bethell v. Clark (1828) 19 Q. B. D. 553, 20 Q. B. D. 615 C. A.; 2 Mechem on Sales, § 1551; Benjamin on Sales, § 840, 841; 1 Jones on Liens, § 908. A delivery to a carrier under such circumstances vests the title in the .vendee and places the goods subject to his risk, but the vendor does not lose his right of stoppage in transitu while the goods are in transit to the buyer." Johnson V. Eveleth (1899), 93 Mo. 306. Citing Grout v. Hill, 70 Mass. (4 Gray) 361; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307; Gibson v. Caruthers, 8 M. & W. 321. "The delivery by the vendor of goods sold to a carrier of any description, either expressly or by implication named by the vendee, and who is to carry on his account, is a constructive delivery to the vendee, but the vendor has a right if unpaid, and if the vendee be insolvent, to retake the goods-before they are actually delivered to the vendee or someone whom he means to be his agent to take possession of and keep the goods for him-and thereby to replace the vendor in the same situation as if he had not parted with actual possession." James v. Griffin, 1 M. & W. 20, 2 M. & W. 623, 633. 5. 2 Mechem on Sales, § 1552; 1 Jones on Liens, § 922. The buyers, through their agent, purchased wool to be shipped to them. "We, however, do not think that (the delivery to the agent) can be said to be such a delivery as to put an end to the vendor's right to WHEN TRANSIT BEGINS.-Until the vendor delivers the goods to the carrier or other bailee, he has a right of lien, in executed contracts, and a right of retention, in executory contracts. Upon delivery to the carrier, the seller loses these, and his right of stoppage in transitu begins." "The transit is held to continue from the time the vendor parts with the possession until the purchaser acquires it; that is to say, from the time when the vendor has so far made delivery that his right of retaining the goods, and his right of lien, are gone to the time when the goods have reached the actual possession of the buyer. ." Generally transit continues until the goods have arrived at the destination to which they have been shipped.9 stop them in transitu. The delivery was not to him, as owner, nor, as agent of the owners, to dispose of them in any other way than to transmit them to the vendee's place of business. The finding is, that he was the agent of the vendees, to make purchases of wool, to be transmitted to Thompsonville, and this seems to be the extent of his agency. He stood, therefore, rather in the position of a mere forwarding agent, than in that of an agent to receive the goods to the vendees' use; and no point is clearer than that a vendor, where the right to stop in transitu exists at all, may stop the goods in every sort of passage to the hands of the purchasers. Stokes v. La Riviere, cited, 3 East, 397. We do not say, as was intimated by Lord Mansfield, in Hunter v. Beal, cited 3 T. R. 466, that the goods must have come to the corporal touch of the vendees.' But, to take away this right, there must have been an absolute delivery in New York, for the use of the vendees, and it must have been a full and final delivery, as contradistinguished from a delivery to a person acting as a carrier or forwarding agent to the principal. Dixon v. Baldwin, 5 East, 175." Aguirre v. Parmelee, 22 Conn. 473, 482, 483. 6. White v. Welsh, 38 Pa. St. 396; Benjamin on Sales, § 841; 1 Jones on Liens, § 905. 7. Lane v. Robinson, 57 Ky. (18 B. Mon.) 623; Stubbs v. Lund, 7 Mass. 453; Atkins v. Colby, 20 N. H. 154; Calahan v. Babcock, 21 Ohio St. 281; White v. Welsh, 38 Pa. St. 396; Halff v. Allyn, 60 Tex. 278; 1 Jones on Liens, §§ 902, 905. If the goods are not shipped according to directions they are not in transit. Woodruff v. Noyes, 15 Conn. 335; Aguirre v. Parmelee, 22 Conn. 484. 473, 8. Aguirre v. Parmelee, 22 Conn. 473; Lane v. Robinson, 57 Ky. (18 B. Mon.) 623; Thompson v. Baltimore, etc., Ky. Co., 28 Md. 396; Stubbs v. Lund, 7 Mass. 453; Atkins v. Colby, 20 N. H. 154; Calahan v. Babcock, 21 Ohio St. 281; White v. Welsh, 38 Pa. St. 396; Halff v. Allyn, 60 Tex. 278; Ex parte Rosevear China Clay Co., 11 Ch. D. 560; James v. Griffin, 1 M. & W. 20, 2 M. & W. 623; Benjamin on Sales, § 839. To the same effect are 2 Mechem on Sales, 1553; 1 Jones on Liens, § 902. 9. Symns v. Schotten, 35 Kans. 310, 315; Newhall v. Vargas, 13 Me. 93; Harris v. Pratt, 17 N. Y. 249, 252, 253; Whitehead V. Anderson (1842), 9 M. & W. 518, 534; Rowe v. Pickford, 8 Taunt. 83; Leeds V. WHEN TRANSIT ENDS.-The transit ends so as to determine the seller's right to stop when the goods arrive at their destination and the buyer or his agent has taken actual or constructive possession of them.10 11 The actual delivery to the vendee or his agent, which puts an end to the transitus, or state of passage, may be at the vendee's own warehouse, or at a place which he uses as his own, though belonging to another, for the deposit of goods; or at a place where he means the goods to remain until a fresh destination is communicated to them by orders from himself;12 or it may be by the vendee's taking possession by himself or agent at some point short of the original intended place of destination."13 Wright, 3 B. & P. 320; Coates v. Railton, 6 B. & C. 422; Winks v Hassall, 9 B. & C. 372; 2 Mechem on Sales, § 1553; Benjamin on Sales, § 848a; 1 Jones on Liens, § 917. "The right of stoppage in transitu may be exercised at any time before the goods have reached the place for delivery to the consignee." Shepard & Morse Lumber Co. v. Burroughs, 62 N. J. L. (33 Vroom) 469. "The rule is generally stated to be that the vendor's right of stoppage in transitu continues until the goods have reached their ultimate destination and come into the actual possession of the vendee." Mohr v. B. & A. R. R. Co., 106 Mass. 67, 70. Citing Stubbs v. Lund, 7 Mass. 453; Stanton v. Eager, 33 Mass. (16 Pick.) 467; Arnold v. Delano, 58 Mass. (4 Cush.) 33; Grout v. Hill, 70 Mass. (4 Gray) 361. 10. Stevens v. Wheeler, 27 Barb. (N. Y.) 658; Frame v. Ore. Liquor Co., 48 Ore. 272; Bolton v. Lanc. & York. Ry. Co. (1866), L. R. 1 C. P. 439; Whitehead v. Anderson (1842), 9 M. & W. 518; Bethell v. Clarke (1888), 20 Q. B. D. 615; 2 Mechem on Sales, § 1573; 1 Jones on Liens, § 938. Where the vendor has the right of stopping goods in transitu, such right continues until there has been a full and final delivery of them at the place named by the purchaser to the vendor as the place of final delivery or ultimate destination, as distinguished from a delivery to a person acting as a carrier or forwarding agent to the purchaser. "Delivery should be at the place named by the purchaser, to the vendor, as the place of final delivery, or ultimate destination of the goods. They must either come to the actual possession of the vendee, or to that place where, by his authority, they are destined to come, for his use, and where nothing further is to be done to them but to sell them to a customer, or apply them to his use. Coates v. Railton, 13 E. C. L. 223, 6 B. & C. 422; Jackson v. Nichol, 5 Bing. (N. C.) 508, 35 E. C. L. 205; Stubbs v. Lund, 7 Mass. 453." Aguirre v. Parmelee, 22 Conn. 475, 483. 11. Scott v. Pettit, 3 B. & P. 469; Rowe v. Pickford, 8 Taunt. 83. 12. Dixon v. Baldwin, 5 East, 175. 13. James v. Griffin, 1 M. & W. 20, 2 M. & W. 623, 633. If the goods have so far reached the end of their journey that they wait for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and if after such orders they will remain stationary, the transitus is at an end. But where a place is fixed by the directions. Upon the arrival of the carrier's vehicle at the destination of the goods, the transit continues until the goods are unloaded, and the carrier's duties and responsibility for them cease.14 After being unloaded, the goods are still in the carrier's possession if he puts them in his own warehouse, 15 or delivers them to a ware given by the buyer to the seller as the ultimate destination of the goods, and a fortiori if there is an express stipulation as to their destination in the contract of sale, the transit is not at an end until the goods reach that place." In re Gurney, Ex parte Hughes, 67 L. R. (N. S.) 598. To the same effect are Kendall v. Marshall, 11 Q. B. D. 356; Coates v. Railton, 6 B. & C. 422. Goods were sold to be shipped to Willardsburgh via canal boat to Havana, thirty miles distant, between which places there was no carrier. Upon arrival at Havana the goods were put in a public warehouse and immediately attached by a creditor of the buyer who was insolvent. The court sustained the seller in the exercise of his right to stop the goods in transit. Covell V. Hitchcock, 23 Wend. (N. Y.) 611. Goods were sold to be shipped to Vergennes, Vermont, via boat, and were unloaded at a public wharf belonging to one Chapman, and situated about half a mile from the buyer's store, from which it was the custom for the consignees to take their goods as soon as unloaded. The goods were attached by a creditor of the buyer immediately upon being unloaded. Held, transit was plete and the right of stoppage gone. Sawyer v. Joslin, 20 Vt. 172. com 14. McFetridge v. Piper, 40 Ia. 627; Greve v. Dunham, 60 Ia. 108; Naylor v. Dennie, 25 Mass. (8 Pick.) 198; Seymour v. Newton, 105 Mass. 272, 275; Inslee v. Lane, 57 N. H. 454; Mottram v. Heyer, 5 Den. (N. Y.) 629; Wheeling, etc., Ry. V. Koontz, 61 Ohio St. 551; Jenks v. Fulmer, 160 Pa. St. 527; Kitchen v. Spear, 30 Vt. 545; Sherman v. Rugee, 55 Wis. 346; Whitehead v. Anderson (1842), 9 M. & W. 518; 1 Jones on Liens, § 926. Transit continues while the carrier's vessel is detained in quarantine. 1 Jones on Liens, § 930. "Transit embraces not only the carriage of the goods to the place where delivery is to be made, but also delivery of the goods there according to the terms of the contract of conveyance." Kemp V. Falk (1882), 7 App. Cas. 573, 588. 15. Loeb v. Peters, 63 Ala. 243; Blackman v. Pierce, 23 Cal. 508; O'Neil v. Garrett, 6 Ia. 480; Clapp v. Peck, 55 Ia. 270; Symns v. Schotten, 35 Kans. 310; Newhall v. Vargas, 13 Me. 93; Morris v. Shryock, 50 Miss. 590, 591; More v. Lott, 13 Nev. 384; Atkins v. Colby, 20 N. H. 155; Inslee v. Lane, 57 N. H. 454; Buckley v. Furniss, 15 Wend. (N. Y.) 137; Covell v. Hitchcock, 23 Wend. (N. Y.) 611; Harris v. Pratt, 17 N. Y. 249; Calahan v. Babcock, 21 Ohio St. 281; Bender v. Bowman, 2 Pearson (Pa.), 517; Chandler v. Fulton, 10 Tex. 2; Halff v. Allyn, 60 Tex. 278; Hoover v. Tibbits, 13 Wis. 79; Benjamin on Sales, § 849. "If the possessor of the goods has the intention to hold them for the buyer and not as an agent to forward, and the buyer intends the possessor so to hold them for him, the transitus is at an end; but I apprehend that both these intents must concur and that neither can the carrier, of his own will, convert himself into a warehouseman, so as to terminate the transitus without the agreeing mind of the buyer (James v. Griffin, 2 M. & W. 623), nor can the buyer change |