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case was decided by the English court in Booth Steamship Co. v. Cargo Fleet Co.161 The action was by the carrier against the seller to recover freight charges. The seller had ordered the delivery withheld from the buyer, but showed no desire to get possession of the goods from the carrier. As the goods had been shipped in the name of the buyer and as his property, there was no contract for freight between the seller and the carrier. The buyer, however, was insolvent and, because of the stoppage, not entitled to possession, and the carrier's lien as against his goods for freight was practically worthless. The court treated the matter as “a novel and interesting point of law, of some interest to carriers and merchants," without analogous precedent, and by viewing the merits of the case declared the seller to be liable.

-Exercise of Right.-An attempted stoppage by the seller gives him no right against the goods if, despite his attempt, they have come into the buyer's possession, at least in the absence of actionable wrong-doing of the buyer. That is to say, so far as the right of repossession of the goods is concerned, stoppage in transitu means an actual retaking of the goods before they reach the buy. er's possession, and not a mere attempt to retake possession.162

In the event of unsuccessful attempt, the seller must look to the carrier for recompense for the latter's wrongful action in delivering despite the seller's order to stop. But to fix any such liability on the carrier the seller must have given him notice not to deliver to the consignee. This proposition is so obvious and elementary that it seems to have given rise to no litigation.163

151—115 L. T. R. 199.

152—See authorities in preceding notes. But in Litt v. Cowley, 7 Taunton 168, it was precisely held that the seller's attempt, by notification to the carrier, to stop the goods amounted to such a rescission of the contract as deprived the buyer, to whom actual delivery was made, of the right of possession. Apparently approved in

Mottram v. Heyer, 5 Denio (N. Y.) 629. Northey v. Field, 2 Esp. 613. This position would be sound if it were the rule that stoppage in transitu, or an attempt to stop, amounted to a rescission of the contract. The accepted rule, however, is that it does not revest title in the seller but merely re-establishes his lien.

The notice to the carrier need not be accompanied with a demand for possession; mere notice not to deliver to the consignee is sufficient to bind the carrier.164 The seller may of course give notice through his own agent, as in other cases,165 and “if the carrier is clearly informed

, that it is the intention and desire of the vendor to exercise his right of stoppage in transitu, the notice is sufficient' 166

The notice must be brought home to the principal person in possession of the goods, but the customary rules of agency apply here and fix the relations of the various persons connected with the carriage and notice to an agent is notice to the principal. So, “notice to the agent of the carrier, who in the regular course of his agency is in actual custody of the goods at the time the notice is given, is notice to the carrier."'167

There is surprisingly little authority in respect to the mode of giving notice and the persons to whom and through whom it must be given. Beyond the fact that notice must be given to the carrier, whether individual or association, in possession of the goods, in reasonable time for it to get instructions to its employees to withhold delivery, nothing definite can be said. As to what employees can receive notice so as to bind the employer; when notice given to one carrier will bind another carrier cooperating in the transit; how far the carrier is obliged to notify another; what is reasonable time; and kindred matters, the accepted rules of agency are undoubtedly guiding analogies.168*

153—That the carrier is liable for delivery after notice to withhold it, see Rosenthal v. Weir, 170 N. Y. 148, and this liability is founded in tort, regardless of the contract for carriage. Booth Steamship Co. v. Cargo Fleet Iron Co., 115 L. T. R. 199, 201; The Tigress, 8 L. T. R. 117; Pontifex V. Midland Ry., 3 Q. B. Div. 23.

154–"A notice by the vendor, without an express demand to redeliver the goods, is suficient to

charge the carrier." Jones v. Earl, 37 Cal. 630; Reynolds v. R. R., 43 N. H. 580.

155—Reynolds v. R. R., 43 N. H. 580; Newhall v. Vargas, 13 Me. 93, notice by unauthorizd agent may be ratified; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188; Whitehead v. Anderson, 9 M. & W. 517.

156—Jones v. Earl, 37 Cal. 630. 157-Jones v. Earl, 37 Cal. 630. 158-Time must be allowed for 159—Ante, p. 144. the notice to be passed on from 160–80 N. Y. 244. the person receiving it to the 161-Resumption of lien, only, person actually in control of Chandler v. Fulton, 10 Tex. 2; the goods, Whitehead v. Anderson, Allyn v. Willis, 65 Tex. 65; Dough. 9 M. & W. 517.

now

Effect of Stoppage.—The effect of a stoppage in transitu was at one time in some doubt and some early decisions are in marked conflict with the later ones. There was among the former a tendency to treat a stoppage, even without actual retaking of possession, as a rescission of the contract, whereby the title was automatically revested in the seller. 169 The rule accepted, however, is without question that neither an attempted nor accomplished stoppage is a rescission of the contract, but that the right to stop delivery and retake possession is a mere extension of the seller's lien, that is to say, of his right to retain possession till paid. The history of this rule is discussed in Babcock v. Bonnell,160 and the conflict of authority pointed out. In conclusion that court says, “The question has never been, that I am aware, definitely decided in this State. As an original question the doctrine of rescission commends itself to my judgment as being more simple, and, in most cases, more just to both parties than the notion that the act of stoppage is the exercise of a right of lien, but in deference to the prevailing current of authority, I should hesitate in attempting to oppose it by any opinion of my own."1617 Since stoppage in transitu merely reinstates the seller in the position of a lienor, his rights thereafter are identical with those already discussed as appertaining to an unpaid seller's lien and need not be again set out here.168

erty Bros. v. Central National Bk., *See Uniform Sales Act, Section 59, (1), (2). See Uniform Sales Act, Sections 57, 61.

4. NEITHER TITLE NOR POSSESSION RETAINED

Recovery of Price. When the seller has parted with both title and possession he has the same right to sue the buyer for the purchase price as in any case when the title has passed.163

Recovery of Possession.—He has no longer, however, any right at all in respect to the goods themselves. All his right of possession has ceased with his loss of actual possession. Though the buyer may flatly refuse to pay and even though he may have become insolvent and unable to pay, the seller can not retake possession, in the absence of fraud.164 This is true even in equity ;165 and even though the buyer was insolvent at the time the contract was entered into, and knew himself to be insolvent, the seller who has parted with both title and possession can not retake the goods.166

The whole idea is that the buyer has become the owner of the property and the seller a mere creditor to the amount of the purchase price. As the seller has no pogsession of the goods, he is in no better position than is any other creditor. He is simply an unsecured creditor with the rights and remedies of all unsecured creditors.167

93 Pa. 227; Jordan V. James, 5 0. 88, 99; Newhall v. Vargas, 13 Me. 93; Diem v. Koblitz, 49 O. S. 41; Kearney v. Union Pac. Rr. Co., 97 Iowa 719, 59 Am. St. 434.

162—See ante, p. 122.

163—See ante, p. 109. He is not limited to the actual value of the goods. Brown v. Harris, 139 Mich. 372.

164-Smith Lumber Co. v. Scott County Co., 149 Iowa 272, 30 L. R. A. (n. s.) 1184; Kramer v. Messner, 101 Iowa 88; Thompson v. Wedge, 50 Wis. 642; Frech

v. Lewis, 218 Pa. 141; Thompson v. Conover, 32 N. J. L. 466, even as to goods delivered in part performance only; Makaness v. Long, 85 Pa. 158; Neal v. Boggan, 97 Ala. 611; Holland's Assee. V. Cin. cinnati Co., 97 Ky. 454.

165—Godwin v. Phifer, 51 Fla. 442.

166—Bell v. Ellis, 33 Cal. 620; Houghtaling v. Hills, 59 Iowa 287; Franklin Sugar Co. v. Collier, 89 Ia. 69; Freeman v. Topkis, 1 Marv. (Del.) 174; Walsh v. Leeper Co., Tex. 50 S. W. 630; Talcott v. Henderson, 31 O. S. 162.

Recovery of Value of Goods.—The seller can not in such circumstances sue even for the value of the goods. He has become entitled to the purchase price, as a debt owing from the buyer, and he is restricted to the customary methods of suing on account of this debt.168 If, however, the seller has only in part performed an entire contract at the time of the buyer's breach, he is not yet entitled to the full purchase price. In such case, if he does not choose to sue simply for his damages for breach of contract, he may bring an action, on the order of quasi-contract, for the actual value of such goods as have passed to the buyer.169

Rescission Because of Fraud.—When, however, the sale has been induced by the fraud of the buyer, the seller can rescind the whole transaction and revest title to the property in himself, and having revested title in himself he can maintain replevin or otherwise repossess himself of the goods, as owner.

When the issue is between the seller and buyer, without relation to third persons, the courts seem to be in some confusion as to whether or not the effect of the fraud is such as to make the sale void, so that no title at all ever passed to the buyer, or merely voidable, so that title

167—This has been ameliorated by statute in some states to the extent of providing that statutory exemptions shall not apply to property for the purchase price of which the judgment was secured. Howell v. Crawford, 77 Ark. 12; Roach v. Johnson, 71 Ark. 344, right to sequester pendente lite; Barton v. Sitlington, 128 Mo. 164.

168—Woodward, Quasi COD. tracts, sec. 263.

169—Wilson v. Wagar, 26 Mich. 452; Willston Coal Co. v. Frank. lin Paper Co., 57 0. S. 182; Thompson v. Gaffey, 52 Neb. 317, option to sue for breach of con. tract or quantum valebit; U. S. v. Molloy, 127 Fed. 953; Bartholomew v. Markwick, 15 C: B. (n. 8.) 711, 109 Eng. Com. L. 711.

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