Sangslaff v. Stix.

expressed, the right may be exercised as long as the goods remain in the possession of the carrier as carrier.

Where the right of stoppage exists it is paramount to the claim of judgment or attaching creditors of the vendee, and it cannot be divested by the goods being levied on under execution or attachment in favor of such creditors. Morris v. Shryrock, 50 Miss. 590.

No particular mode is prescribed by law for the assertion of the right, but to do so effectually it is essential that the vendor shall, before the goods are delivered to the vendee, give notice to the carrier or person in the immediate custody of the goods not to deliver them, and if a servant has the custody of the goods, and notice be given to his principal, it must be in time to enable him with reasonable diligence to prevent a delivery to the vendee. 2 Kent Com. 544, n.; Benj. Sales, § 860.

These conclusions are not disputed here, but it is insisted by appellants that the right of stoppage was defeated by a constructive possession of the goods by the vendee before notice was given to the carrier or person in the immediate custody of the goods to stop them, and before the attachment was levied, and in this position the law is with the appellants.

It was said by the court in Whitehead v. Anderson, 9 Mees. & Wels. 517, that a constructive possession by the vendee which supersedes the right of stoppage exists "when the carrier enters expressly or by implication into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee, as his agent, not for the purpose of expediting them to the place of original destination, pursuant to that contract, but in a new character, for the purpose of custody, on his account, and subject to some new or further order to be given to him."

We accept this as a true and approved interpretation of what is meant by constructive possession, in a contest between the vendor and vendee or attaching creditors of the vendee, when the right of stoppage in transitu is involved. Benj. Sales, §§ 846, 849; 2 Kent Com. 545; Lickbarrow v. Mason, 1 Smith Lead. Cas. 1202, 1244, 1245.

The application of the principle to the facts of record here is fatal to appellce.

In the case before us the goods were not in the possession of the carrier, as carrier, when they were attached. They had reached their destination by rail and the liability of the carrier, as carrier,

Sangslaff v. Stix.

had been terminated by the acts of its agent and the vendees. The payment of the freight and the receipt for the goods by the ven. dees and leaving them in the railroad depot until they were sent for by the vendees, constituted the railroad company the agent of the vendees, not for the transportation, but for the custody of the goods. Benj. Sales, §§ 846, 849, 856; 2 Kent Com. 545; Lickbarrow v. Mason, 1 Smith Lead. Cas. 1202, 1244; 1245.

Judgment reversed.

NOTE BY THE REPORTER.- See Calahan v. Babcock, 21 Ohio St. 281; s. c., 8 Am. Rep. 63.

Benjamin says (Sales, 1077, § 1254): "The question and the sole question for determining whether the transitus is ended is in what capacity the goods are held by him who has the custody? Is he the buyer's agent to keep the goods? or the buyer's agent to forward them to the destination intended at the time the goods were put in transit ?”

"Goods are liable to stoppage as long as they remain in possession of the carrier, qua carrier. Benj. Sales, § 1247.

In ex Parte Cooper, 11 Ch. Div. 68, it was held that "the transitus is not at an end so long as the carrier continues to hold the goods as a carrier. It is not at an end until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the consignee, not as carrier, but as his agent." To the same effect, McPetridge v. Piper, 40 Iowa, 627; Harris v. Pratt, 17 N. Y. 249. In the last case it was held that the transit continues until the goods come to the possession of the vendee or of some agent authorized to act in respect to the disposition of them otherwise than by forwarding them to the vendee."

Story says (Sales), § 337: "In all cases however where the goods remain in the hands of a carrier, the circumstances must distinctly show that he holds them in a new character, as special bailee of the custody; and if the consignee suffer them to remain in his hands under circumstances which show no express or implied agreement on the part of the carrier to hold them specially on account of the vendee, or which do not indicate clearly that no immediate better possession by the vendee is contemplated, the vendor will still retain a right of stoppage."

In Inslee v. Lane, 57 N. H. 454, the consignors of goods, sold upon credit, sent them by rail to the place of destination. Upon their arrival the car containing the goods was set out upon a side-track where, according to custom, the goods were to be taken from the car immediately by the consignees, or if not so taken, were liable to be charged $2 a day demurrage. There was no agreement or understanding between the carriers and the consignees that the goods should be held by the former as warehousemen, or as agents of the consignees. The consignees, who were insolvent, absconded before the arrival of the goods. The consignors first learned of the insolvency of the consignees after the goods were forwarded. A general truckman, who had a standing ́ order from the consignees to take any goods he might find at the railroad sta

Sangslaff v. Stix.

tion and bring them to the consignor's store, was informed by an agent of the carriers of the arrival of the goods but did not remove them. The next day the goods were attached by the defendant. The truckman was appointed. keeper of the goods by the attaching officer and removed them under his direc tions. Held, the consignors' right of stoppage in transitu was not terminated at the time of the attachment, and they might maintain trover against the at taching officer for the value of the goods. The court said:

"The essential ground of the right of lien is possession; that of stoppage in transitu is non-delivery to the vendee. There may doubtless be a valid constructive delivery without actual tangible possession by the vendee,—and ‘in the variety and extent of dealing, which the increase of commerce has introduced, the delivery may be presumed from circumstances, so as to vest a property in the vendee. A destination of the goods by the vendor to the use of the vendee,-marking them or making them up to be delivered, or removing them for the purpose of being delivered, may all entitle the vendee to act as owner, to assign, and to maintain an action against a third person, into whose hands they have come. But the title of the vendor is never entirely divested till the goods have come into the possession of the vendee. He has therefore a complete right, for just cause, to retract the intended delivery, and to stop the goods in transitu.' Lord LOUGHBOROUGH, in Mason v. Lickbarrow, 1 H. Bl. 364; Williams v. Moore, 5 N. H. 235.

"In the case of Hunter v. Beale, cited in Ellis v. Hunt, 3 Term R. 466, Lord MANSFIELD was clearly of opinion, that though the goods might be legally delivered to the vendee for many purposes, yet as for this purpose there must be an absolute and actual possession by the bankrupts, they must have come to the corporal touch of the vendees, otherwise they may be stopped in transitu. But in Ellis v. Hunt, Lord KENYON said: As to the necessity of the goods coming to the corporal touch of the bankrupt, that is merely a figurative expression, and has never been literally adhered to. For there may be an actual delivery of the goods without the bankrupt seeing them, as a delivery: of the key of the vendor's warehouse to the purchaser.' And in Dixon v.. Baldwen, 5 East, 184, Lord ELLENBOROUGH also disapproved of the ruling of Lord MANSFIELD in Hunter v. Beale, saying: The question is, whether the party to whose touch the goods actually come, be an agent so far representing the principal as to make the delivery to him a full, effectual, and final deliv. ery to the principal, as contradistinguished from a delivery merely to a person acting as a carrier or means of conveyance to or on account of the principal, in a mere course of transit toward him.' 1 Pars. Cont. 603, and cases cited. So demanding and marking the goods by the vendee's agent at the inn where the goods arrived at their destination, has been considered a constructive delivery, defeating the right of stoppage in transitu. Ellis v. Hunt, before cited.

"But delivery to a mercantile house merely for transmission to the vendee by a forwarding house does not take away the right of stoppage. Hays v. Morrill, 14 Penn. St. 48.

The possession of a carrier is not such actual possession of the vendee or consignee as takes away the right of stoppage. This,' said LAWRENCE, J., in Bothlingk v. Englis, 3 East, 395, has been repeatedly determined.'

Sangslaff v. Stix.

"And if goods are shipped for a particular port, or forwarded to a particular place, thence to be sent by another ship or other conveyance to the vendee, and a wharfinger or a middle-man receives them on their first arrival for the purpose of forwarding them to the vendee, the vendor's right of stoppage continues until the goods have reached the possession of the vendee. Mills v. Ball, 2 Bos. & Pull. 457; Ellis v. Hunt and Atkins v. Colby, before cited.

"In such circumstances it might happen that it would be proper and necessary to submit to the jury such questions as whether the wharfinger or middleman received the goods as the vendee's agent, to take possession of them for his benefit as owner, or as his agent only to forward them to him, or to keep them for the vendor. Houston Stop. in Trans. 122; Reynolds v. Railroad, 43 N. H. 580.

"If the wharfinger or middle-man, or any other person, be the actual agent of the vendee, beyond the duty and position of such person as a mere wharfinger, carrier, or forwarder, the possession of such agent would be as effectual a bar to the right of stoppage as the actual manual possession of the vendee. Dizon v. Baldwen, before cited; Harman v. Anderson, 2 Camp. 243; Lucas v. Dorien, 7 Taunt. 279; Atkins v. Colby, before cited; Houston Stop. in Trans. 114.

"Applying these principles, what is the condition of the case before us? It is conceded that the vendees were insolvent, and that this fact became known to the plaintiffs after the shipment of the goods. It is not contended (and upon the facts it cannot be) that the Cheshire railroad were the agents of the vendee for the purpose of receiving the delivery or possession of the goods. While standing upon the Surrey track they were still in the possession of the carrier, undelivered, and in a state of detention by the railroad, according to their custom and contract with reference to demurrage. Demurrage is'a condition of detention and delay beyond the ordinary time for unloading or delivery. See Bouv. Law Dic.

"In this condition of the goods it is not claimed that there was any understanding or agreement that the railroad corporation should hold them as ware. housemen or agents of Barnes & Co. The case of Smith v. Railroad, 27 N. H. 86, cited by the defendants, is therefore not in point. Nayler v. Dennie, 8 Pick. 198.

"Howland was a 'general truckman,' and notwithstanding he had had a general order to take any thing he might find for Barnes & Co. at the depot and bring it to the store, that order cannot be said to have continued after the store had been abandoned and all its contents removed, the traders having absconded. Moreover, the case finds that there was no evidence of any authority in Howland to act as the agent of Barnes & Co. for the purpose of taking possession of the shingles: and it was admitted at the trial that in taking possession of them and removing them he acted under the direction of the attaching officer, and not as agent of Barnes & Co. Barnes & Co. having no agent to receive or forward the goods, having themselves departed to parts unknown, the ultimate destination of the goods being unaccomplished and unknown, it can, in no sense, be considered that the goods had come to the possession of the vendees.

Sangslaff v. Stix.

"Such being the facts as proven or admitted, and no exception being taken to the instructions of the court upon the subject of constructive delivery and possession, I fail to discover any error in the proceedings of the court below, and am clearly of opinion there should be judgment upon the verdict.”

In Hall v. Dimond, 63 N. H. 565, the court said: “No part of the goods was formally delivered to Sanborn. The rule of the railroad, known to Sanborn, required the payment of freight before the goods were delivered; but prior to the reception of the goods in controversy, the agent had allowed him, after goods consigned to him were deposited in the freight-house, to take a part or all without any formal delivery, intending to collect the freight while goods of sufficient value to secure it remained in the possession of the railroad, but this was not always done, as he had previously paid his freight bills promptly on demand. Occasionally Sanborn left his goods in the depot a few days after he had paid the freight. The goods were together at the freight station, and the agent knew when Sanborn took away a part of each of the three ship. ments, and made no objection.

"The goods had reached their ultimate destination and according to the previous and customary course of dealing were so far within the control of the consignee that he was at liberty to take away any that he chose, and he had taken away a part of each shipment. The selection of the goods removed was not determined or controlled by any restriction upon the consignee's right of removal. The goods remaining at the freight station were left there, not because of the consignee's neglect or refusal to accept or his inability to take them, Inslee v. Lane, 57 N. H. 454, Reynolds v. Railroad, 43 N. H. 520, but because he did not choose to remove them at that time. They were left voluntarily and temporarily, as a matter of convenience to the consignee. By the previous course of dealing the rule of the railroad requiring payment of freight as a condition precedent to delivery had been waived, and Sanborn had been allowed to use the freight station for the temporary storage of goods consigned to him, taking them away as he wanted them. A portion of the goods had been at the station nearly a month, and the last shipment arrived. eight days before the attachment. The railroad allowed the goods to remain there for Sanborn's accommodation, holding them as his agent and not as carrier. Its duties and its liabilities as carrier and insurer had terminated, and its responsibility was that of warehouseman only. Moses v. Railroad, 32 N. H. 523; Smith v. Railroad, 27 N. H. 86. The customary course of dealing is presumed to continue, and both the carrier and the consignee must have understood that the goods remained at the freight station as the goods of the consignee at his risk and subject to his order and control, notwithstand. ing the undisclosed purpose of the agent. at the time of the attachment, to hold the balance of the goods until the freight was paid. 'The carrier's change of character into that of an agent to keep the goods for the buyer, is not at all inconsistent with his right to retain the goods in his custody till his lien upon them for carriage or other charges is satisfied. Nothing prevents an agreement by the master of a vessel or other carrier to hold the goods after arrival at destination as agent of the buyer, though he may at the same time say, I shall not let you take them till my freight is paid.' Benj. Sales (4th Am. ed.), § 1270.