The right of stoppage is not affected by the fact that the seller has received notes or other instruments for the price, or in other ways given credit, unless such notes have been accepted in payment.121* Neither is it affected by part payment, although, of course, the debt for which the property could be held would be proportionately reduced.122

-Does Not Exist Against Buyer's Possession.-The right of stoppage in transitu is, as its name indicates, a right to retake possession only while the goods are in transit to the buyer. The exception on which the right is founded does not go to the extent of permitting repossession after the journey is ended. This point was raised in Conyers v. Ennis.123 In that case it appeared that one Rousmaniere had ordered goods of the plaintiff which the latter duly shipped to him. He was insolvent at the time, although this was unknown to the plaintiff, and later committed suicide. The carrier delivered the goods into the hands of his administrators, the defendants. The defendants resold the goods and the plaintiffs now claimed the proceeds. As there appeared to be no actual fraud on Rousmaniere's part on which a rescission of the contract could be founded, the plaintiffs claimed a right of stoppage in transitu.

Mr. Justice Story began his opinion by recognizing that "this is a case of extreme hardship, and such as might well induce a court to strain after some mode of redress."

& Co. v. Barker, 102 Ala. 679, fact that buyer has absconded is not, by itself, enough; Gustine v. Phillips, 38 Mich. 674.

121-Newhall v. Vargas, 13 Me. 93; Stubbs v. Lund, 7 Mass. 453; Brewer Lumber Co. v. Bost. & Al. Rr., 179 Mass. 228, even though on receipt of note bill is marked paid; Clapp Bros. v. Sohmer, 55 Iowa

273; Hays v. Mouille & Co., 44 Pa. 48, notes need not be tendered back at time of stoppage; Edwards v. Brewer, 2 M. & W. 375; Feise v. Wray, 3 East 93.

122-Newhall v. Vargas, 13 Me. 93; Howatt v. Davis, 5 Mumford (Va.) 34; Feise v. Wray, 3 East

93.

123-2 Mason 236, Fed. Cas. 3149.

*See Uniform Sales Act, Section 52, (1), (2).

"The principal point," he continued, "which under these circumstances has been pressed at the bar, is that the right of a consignor to stop property in cases of insolvency, ought not to be confined to cases of stoppage in transitu, but in equity should extend to all cases where the property is not paid for and remains in the hands of the consignee. It is admitted that the decisions in England have confined the right of stoppage to cases where the property is in its transit. But it is suggested, that the point has not been solemnly adjudged in the United States, and that it is open for the court to adopt the more enlarged rule, hinted at by Lord Hardwicke, in Snee v. Prescott.124 All argument of this sort is addressed in vain to this court. Nothing is better settled, if an uninterrupted series of authorities can settle the law, than the doctrine that the vendor, in cases of insolvency, can stop the property only while it is in its transit. If it has once reached the consignee, there is an end of all right to reclaim it as a pledge for the payment of the purchase money.

*

,,125

#

-When Goods Are in Transit.-The issue is very often raised, therefore, as to just when the transit between seller and buyer has ceased. In general it may be said that it is not at an end until the goods have come into the actual possession of the buyer or the possession of someone acting as the buyer's agent for the purpose of possession.*

Very broadly speaking the goods are in transit, whether in motion or at rest, whether in the hands of the original carrier or of some remote forwarder, so long as

124-1 Atk. 245.

44 Fla. 803, 33 So. 527. Even though the carrier later takes possession from the buyer and goods are in its hands at time of seller's attempt to stop. Re Dancy Hard

125-This is true even though the buyer personally is willing to give up the goods and admits that he received them without intending to keep them. Smith v. Gail, ware Co., 198 Fed. 336.

*See Uniform Sales Act, Section 58, (1), (2), (3), (4).

the bailee in whose possession they are has them by virtue of the seller's contract with the transportation agency. The transit does not end until the person in whose possession they are, holds, by virtue of some new agreement, under some contract relation with the buyer, or his privy.126

Mere length of time elapsed between the shipment and the attempt to stop in transitu does not itself terminate the transit, nor otherwise affect the right.127

The carrier, as such, is an agent for carriage and not primarily for possession and the transit is not at an end so long as the goods are in its possession as carrier. Even though they have come to their journey's end so far as the carrier's duty to transport is concerned, if the freight is still unpaid, or the carrier has another lien against them, and the carrier has not agreed with the buyer to hold under a new contract with him, they are still technically in transit.128 But the idea of transportation—not necessarily meaning motion-is essential; if it is lacking, the agent is obviously an agent primarily for possession, 129

The character of the carrier is immaterial. So long as it is acting as an agent for the purpose of transportation only and is not an agent of the buyer for purpose of possession, as such, the right of stoppage may be exercised.180

126-It has been said that even actual physical possession by the buyer would not terminate the transit if without consent on his part. Heinekey v. Earle, 8 El. & Bl. 410, 120 Eng. Rep. 153.

127-Buckley V. Furniss, 15 Wend. (N. Y.) 137, 40 days; Jeffris v. Fitchburg Rr., 93 Wis. 250, more than a year.

128-Jeffris v. Fitchburg R. R., 93 Wis. 250; Brewer Lumber Co. v. Bost. & Al. R. R., 179 Mass. 228; Wheeling & L. E. R. R. Co. v. Koontz, 61 O. S. 551; Rogers v.

Schneider, 13 Ind. Ap. 23; Harding Paper Co. v. Allen, 65 Wis. 576; Kahnweiler v. Buck, 2 Pears. (Pa.) 69, even though carrier has made tender of possession to the buyer; Coleman v. N. Y., N. H. & H., 215 Mass. 45, even though buyer has paid freight and taken samples.

129-Rummel v. Blanchard, 216 N Y. 348.

130-Johnson v. Eveleth, 93 Me. 306, logging company as carrier; Muskegon v. Underhill. 43 Mich. 629, implied.

Even if the means of transportation is owned or chartered by the buyer, if it is used as a carrier for the purpose of transporting the goods to the buyer, the goods are in transit until they reach him, and are subject to stoppage.131

If, however, they are delivered to a vessel or other carrier as though to a warehouse, or to an agent for possession, then the transit between the seller and the buyer is at an end, despite the fact that the goods are to be carried to other points. The matter is well stated in Berndtson v. Strang, 182 the court saying, "If a man send his own ship, and orders the goods to be delivered on board his own ship, and the contract is to deliver them free on board, then the ship is the place of delivery and the transitus is at an end, just as much * as if the purchaser had sent his own cart, as distinguished from having the goods put into the cart of a carrier. Of course there is no further transitus after the goods are in the purchaser's own cart. There they are at home, in the hands of the purchaser, and there is an end of the whole delivery. The next thing to be looked to is, whether there is any intermediate person interposed between the vendor and the purchaser. Cases no doubt may arise, where the transitus may be at an end although some person may intervene between the period of actual delivery of the goods and the purchaser's acquisition of them. The purchaser, for instance, may require the goods to be placed on board a ship chartered by himself and about to sail on a roving voyage. In that case, when the goods are on board the ship everything is done; for the goods have been put in the place indicated by the purchaser and there is an end of the transitus.”

The question of whether the delivery to the carrier is for transportation between the seller and buyer, or is a delivery to a representative of the buyer for transporta

131-Newhall v. Vargas, 13 Me. 93; Stubbs v. Lund, 9 Mass. 453; Ilsley v. Stubbs, 9 Mass. 65; Ex

parte Falke, 14 Ch. Div. 446, 7 App. Cas. 573.

132-L. R. 4 Eq. 481.

tion elsewhere, is really one of fact in each case and not one that can be solved by the application of any rule.'

133

The truest test, although one not expressed by courts is, that if the possessor of the goods holds them through contract with the seller, the goods are in transit, while if contract relation with the seller has terminated, or the possession has been delivered without contract relation, the transit is ended.134

The coming of the goods into other hands than those of the original carrier does not necessarily terminate the transit, if the original contract still exists.

The delivery by the carrier to a wharfinger or warehouseman does not terminate the transit, if such recipient is the carrier's agent, or a public agent, to hold the goods until actual or constructive delivery, to the buyer. Such a warehouseman is merely a link in the chain of transportation under the seller's original directions.135

133-Bethell & Co. v. Clark, 20 Q. B. Div. 615.

134-Newhall v. Vargas, 13 Me. 93; Stubbs v. Lund, 9 Mass. 453; Berrendson v. Strang, L. R. 4 Eq. 481; Cf. Schotsmans v. Lancashire & Y. R. R., L. R. 2 Ch. Ap. 336. In Bethell & Co. v. Clark, 20 Q. B. Div. 615, the contract of sale was silent as to delivery but the buyer's subsequent order was to "consign*** to the 'Darling Downs', to Melbourne * * *". The issue was whether transit ended with delivery on board the Darling Downs. The court held that it did not so end, that where the transit "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" and that the "business meaning" of the order in this case was, not that the goods were

to be delivered to the Darling Downs as to a warehouse, thence to be sent further by the buyer, but to her as a carrier which would transport them to Melbourne. The Darling Downs appears to have been a general ship, scheduled to sail to Melbourne independently of the buyer. In Rowley V. Bigelow, 12 Pick. (Mass.) 307, the goods were ordered delivered to the ship "Lion", which the buyer owned himself, and which he had himself apparently ordered to proceed to Boston. It was held that the transit ended on delivery aboard the Lion.

135-Reynolds v. R. R., 43 N. H. 580; Calahan v. Babcock, 21 O. S. 280; Mottram v. Heyer, 5 Denio (N. Y.) 629, delivery to customs officers; Donath v. Broomhead, 7 Pa. 301, idem.