A Treatise on the Law of Contracts and Rights and Liabilities Ex Contractu

his disposal, the delivery to such agent is a delivery to the principal, and the transitus consequently is determined as soon as the goods reach his hands. And if the transit be once at an end, it cannot commence de novo, merely because the goods are again sent upon their travels towards a new and ulterior destination. (≈)

Le Grand and Co., of Paris, gave an order to a manufacturer at Manchester, to send goods to their agent in London, who was invested with a general authority to receive and hold goods on their account, and send them from to time to such markets as they should direct or the agent himself should think advisable, and the goods were, by the agent's directions, sent to the house of his packer in London, and there unpacked, and part of the goods were sent away, and the remainder repacked, and left in the packer's house; it was held that the goods had got to their journey's end, and that the delivery to the agent was under the circumstances a delivery to the purchaser himself. (a)

Whenever, therefore, the goods get into the actual possession of the purchaser, or into the hands of a third party, who has received them by the direction and authority of the purchaser, and has agreed to hold them on account of the latter, and at his disposal, and is, therefore, answerable to him for their safe custody, the contract of sale is consummated, the transitus is at an end, and the vendor has lost all power of disposition and control over the goods. (b)

Transfer by bill of lading.—The contract of sale also may be consummated and the right of stoppage in transitu destroyed by the delivery of a bill of lading to the purchaser, and the indorsement and delivery thereof by such purchaser to a third party, who has again bought the goods bona fide for a valuable consideration, without notice of the nonpayment of the price to the first vendor.

A bill of lading is an acknowledgment by the master or captain of a vessel of his having received the goods mentioned in such bill on board his ship, and an undertaking to deliver them to the order or assigns of the shipper or consignor. It is by the custom of merchants, recognised and sanctioned by the common law, a negotiable instrument, like a bill of exchange, and the indorsement and delivery of it to third parties, who have given credit to such bill of lading, and have bought the goods mentioned therein in ignorance of the state of accounts between the

(2) Dixon v. Baldwen, 5 East, 184. Dodson v. Wentworth, 5 Sc. N. R. 821:

(b) Ellis v. Hunt, 3 T. R. 464. Wright v. Lawes, 4 Esp. 82. Stoveld v. Hughes, 14 East, 308. Parke, B., James v. Griffin, 2 M. & W. Foster v. Frampton, 9 D. & R. 108.

(a) Leeds v. Wright, 3 B. & P. 320. Tindal, C. J., Jackson v. Nichol, 7 Sc. 590.

623.

shipper and his immediate purchaser, transfers the property to the indorsee as absolutely and effectually as if the goods themselves had been manually delivered.

As between the consignor or first vendor and his immediate vendee and the persons who have bought and sold to each other, the indorsement or delivery of the bill does not destroy the right of stoppage in transitu, and deprive the unpaid vendor of his right to recover and retain possession of the goods. Its existence does in no degree alter or vary the rights and respective situations of the immediate parties to the sale. As between the shipper and the captain, it fixes and determines the duty of the latter, as to the person to whom the goods are to be delivered, but it may be revoked and countermanded, in case of the insolvency of the consignee, at any time before it has been actually executed and obeyed by the delivery of the goods themselves, like any other order or direction to a common carrier. (c) But as between the consignor or first vendor and third parties, bona fide purchasers for a valuable consideration, the case is different. The first vendor, by indorsing and delivering the instrument to his immediate purchaser, accredits the title of the latter to the goods, and holds him out to the mercantile world as the owner of them, and the bona fide indorsement and delivery of such purchaser to a third party, consequently deprive the first vendor of all power and control over the goods, and destroy his right to stop in transitu as against such bonâ fide holder for value. (d) If the holder or assignee of the bill, however, has acted malá fide, if he knew of the insolvency of the consignee at the time he took the bill, he will of course be in no better situation than the consignee his immediate vendor. (e)

A shipping note has not the effect and operation of a bill of lading, and does not transfer goods by indorsement; the goods, moreover, will not pass to third parties by the mere delivery of a bill of lading without indorsement, and the operation of the bill may be qualified and restricted by a conditional indorsement. (ƒ)

Transfer by delivery orders.-If the subject matter of the sale be defined and identified, and the quantity and price ascertained and fixed, there may be a constructive delivery and consequent consummation of the contract of

Wilmshurst v. Bow

(d) Lickbarrow v. Mason, 6 East, 19, (a); 2 Smith's leading cases, 388, 435. Cuming v. Brown, 9 East, 505. Caldwell v. Ball, 1 T. R. 205. Hibbert v. Carter, ib. 745. In re Westzinthus, 5 B. & Ad. 817. Jenkyns v. Usborne,

13 Law J. Rep. N. S. 196. C. P. Jones v. Jones, 8 M. & W. 431.

(e) Ellenborough, C. J., Cuming v. Brown, 9 East, 514. Barrow v. Coles, 3 Campb. 92. (f) Akerman v. Humphrey, 1 C. & P. 57. Jenkyns v. Usborne, 13 Law J. Rep. N. S. 196, (C. P.) Mitchell v. Ede, 11 Ad. & E. 903.

sale, through the medium of a delivery order given by the vendor and accepted by a warehouse-keeper or wharfinger or other bailee of the goods, although the weighing and separation of the precise quantity to be delivered from a mass of the commodity in bulk, may be necessary to effect a manual delivery of the article or thing sold and place it in the actual possession of the purchaser.

Messrs. Dutton and Bancroft, oil merchants at Liverpool, having forty tons of oil lying in certain cisterns, of which they had the key, sold ten tons thereof to J. and L. Frost, who sold the same to one John Townsend, at a fixed price, and took his acceptance by way of payment, and gave him a delivery order on Dutton and Bancroft, to the following effect: "Messrs. Dutton and Bancroft,-Please to deliver the bearer, Mr. John Townsend, ten tons of Greenland whale oil, we purchased from you on the 8th of November last." This order was taken to Dutton and Bancroft, and they indorsed their acceptance on the back of it, and it was held, that as between the Frosts and Townsend the sale was complete, and that the Frosts consequently, on the bankruptcy of Townsend, the sub-vendee, before his acceptance became due, could not countermand the delivery order.

"After the acceptance of the order, Dutton and Bancroft held the oil for Townsend's use. But something, it is said, still remained to be done, namely, the measuring off the ten tons from the rest of the oil. The objection only applies where something remains to be done, as between the buyer and seller, or for the purpose of ascertaining either the quantity, or the price; neither of which remained to be done in this case; for it was admitted by the persons who were to make the delivery to Townsend, that the quantity mentioned in the order was in the cistern in their custody; for they had before sold that quantity to the Frosts, of whom Townsend purchased it, and had received the price. Therefore, though something remained to be done, as between the vendee and the persons who retained the custody of the oil before the vendee could be put into separate possession of the part sold, yet as between him and his vendors, nothing remained to perfect the sale." (g)

A specified quantity of oats in a particular bin in a warehouse, was sold by Turner and Co., who gave to the purchaser the following delivery order, addressed to the warehouse-keeper: "Deliver Mr. J. Marsden, 1,02813 bushels of oats, bin 40. O. W., and you will please weigh them

9) Le Blanc, J., Whitehouse v. Frost, 12 Rep. N. S. 201. (C. P.) East, 621. Jenkyns v. Usborne, 13 Law J.

over, and charge us the expense." The warehouse-keeper entered this order in his book, and two days afterwards, the oats being again sold, he received the following delivery order from Marsden: "Deliver Messrs. Swanwick and Hall, 1,02813 bushels, in bin 40. O. Warehouse; and let them be weighed over, and send a note up: I will see it paid." This last order was likewise entered by the warehouse-keeper in his books, and the oats were transferred into the names of Swanwick and Hall, the last purchasers, but before they were manually delivered to them, and before any weighing had taken place, Marsden, their immediate vendor, became insolvent, and Turner and Co., the original vendors, gave the warehousekeeper notice not to part with the oats, and subsequently induced him, on tender of an indemnity, to give them up to them. It appeared that the price had been ascertained and fixed at the period of each sale, that the last purchasers, Swanwick and Hall, had paid the price to Marsden, their vendor; that there were no other oats in bin 40, besides the oats in question, and that the weighing mentioned in the order was not usually performed before the time of manual delivery, when the grain was weighed to ascertain any loss of quantity for the satisfaction of the purchaser, and it was held that the delivery was complete by the transfer in the books of the warehouse-keeper, and that the latter was responsible to Swanwick and Hall, for having parted with the possession of the goods to Turner and Co., the original vendors. (h)

The weighing, it will be observed, was not necessary in this case, for the purpose of ascertaining either the price or the identity of the thing sold. The contract was for the sale of the contents of a particular bin at a fixed price, the vendor undertaking that such contents amounted to 1,0281 bushels. The case, therefore, is distinguishable from the previous cases of Busk v. Davis, Simmons v. Swift, and Hanson v. Meyer, (i) where it was held, that the delivery was not complete, and that the contract was not executed until the weighing had been accomplished.

The acceptance of the delivery-order by the wharfinger or warehousekeeper or other depository or bailee of the goods, and his assent to the delivery, under such circumstances, whether the order is or not entered in his books or filed in the warehouse, constitute him the agent or trustee of the purchaser, and bind him to hold the goods at the disposal of the latter, and there is therefore an executed delivery as much as if the goods had been delivered into the purchaser's own hands, or had been removed to his warehouse, and there put under lock and key. (k)

(h) Swanwick v. Sothern, 9 Ad. & E. 895; 1 P. & D. 648, s. c.

(i) Ante, pp. 50, 51, 53.

(k) Harman v. Anderson, 2 Campb. 242.

A contract was entered into for the sale of twenty sacks of flour at a fixed price, and the vendor gave to the purchaser an order on the defendants his wharfingers to deliver to the purchaser "Twenty sacks of households." The order was presented to the defendants and filed by them in the usual course of their business, and it was held, that by their acceptance of the order, they had made themselves responsible to the purchaser for the delivery to him of the articles specified therein. This was

an order," observe Bayley and Vaughan, Bs., to deliver twenty sacks of flour, not out of a larger quantity, but twenty sacks specifically, and when the defendants accept that order without restriction, they admit that they have twenty sacks, which they will appropriate to that order, and they have no right afterwards to say that they have not twenty sacks unappropriated." The delivery order is taken to the wharfinger to see if the party giving the order has the articles mentioned in it in the wharfinger's possession. The defendants, in this instance, attorn, as it were, to the delivery order, and admit the purchaser's right to call upon them to deliver twenty sacks of flour. Having received that order, it is binding on them, (7) and they cannot afterwards deny the title of the purchaser.

A warehouseman had received an order from the vendor of a specific quantity of malt, to hold it on account of the purchaser, and the warehouseman assented to the order, and gave a written acknowledgment to the purchaser that he held it on his account, and afterwards refused to deliver it, on the ground, that by the usage of trade, the property in malt is not transferred to the purchaser until it is re-measured, and that before the malt was re-measured, the vendor became bankrupt; and it was held that this was no answer to the purchaser's claim against the warehouseman. "Whatever may be the rule," observes Lord Ellenborough, "between buyer and seller, it is clear that the defendant (the warehouseman) cannot say to the purchaser, the malt is not yours, after acknowledging that he held it on his account. By doing so, he attorned to the purchaser, and I should entirely upset the security of mercantile dealings, were I now to suffer him to contest his title." (m)

And, although the goods are not, at the time of the acceptance of the order, in the actual possession of the warehouseman, yet if they afterwards come to hand, he is bound to hold them at the disposal of the

Hurry v. Mangles, 1 Camp. 451. Lucas v.
Dorrien, 1 Moore, 40, 41; 7 Taunt. 278, s. c.
Holl v. Griffin, 3 M. & Sc. 732; 10 Bing. 246,
B. c. Kieran v. Sandars, Ad. & E. 515, 1
N. & P. 625, s. c.

(1) Gillett v. Hill, 2 C. & M. 536; 4 Tyr. 290, s. c. Lackington v. Atherton, 8 Sc. N. R. 42. (m) Stonard v. Dunkin, 2 Campb. 344. Craven v. Ryder, 6 Taunt. 433; 2 Marsh, 366, s.

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