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§ 1518. Same subject — Instal- 1 $ 1539. Only against an insolvent ment delivery Subse

buyer. quent appropriation.

1540. Evidence of insolvency. 1519, 1520. What constitutes 1541. Absconding, attachinsolvency.

ment, etc., not enough.

1542-1544. Insolvent when. 5. Revival of Lien on Expiration of Credit

4. Under What Conditions Stoppage 1521. Lien revives on expiration of

May be Effected. credit 6. Effect of Tender of Price. 1545, 1546. Goods can be stopped 1522. Lien lost by tender of price.

only while in transit.

1547. Existence of a transit 7. Effect of Claiming Lien.

Goods transported on ship 1523. Claim of lien does not rescind

or other vehicle owned or sale.

chartered by purchaser. II. THE SELLER'S RIGHT OF STOPPAGE

1548. Shipment on vessel IN TRANSITO.

owned by buyer.

1549. Shipment on vessel char. 1524. What here included.

tered by buyer. 1. The General Nature of the Right. 1550. Same subject Reserving 1525, 1526. The origin and nature of

control. the right.

1551.

Shipment by carrier des1527. Exists only when title has

ignated by the buyer. passed.

1552. Shipment through pur1528. Right favored in the law.

chasing agent of buyer. 2. Who May Stop the Goods. 1553-1555. How long the transit

continues — In general. 1529. Right may be exercised only by vendor or one in his

1556. Buyer may intercept the position.

goods.

1557. Is carrier's consent nec1530. By factor who has bought goods for principal

essary. 1531. By person who pays price for

1558-1561. Interception by buyer's vendee.

agent - Agent to receive

or forward. 1532. But not by vendor of seller. 1533. Nor by unpaid agent of seller.

1562. Interception by sub-pur

chaser - Mere resale does 1534. Principal who has consigned

not defeat stoppage. goods to factor may stop.

1563-1567. Indorsement of bill of 1535. Surety for the buyer may not

lading. stop the goods.

1568. 1536. Seller of executory interest

Pledgee of goods — Bill

of lading as security. may exercise the right.

1569, 1570. Absolute sale of 1537. Stoppage by agent for his principal — Ratification.

goods, but purchase price

unpaid – Right to reach 3. Against Whom Stoppage May be

proceeds. Effected.

1571. Interception by buyer's cred1538. Against buyer or one stand

itors — Attachment-Garing in his attitude.

nishment

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EDIES

§ 1572. Interception by seller as a , III. SELLER'S RIGHT OF STOPPAGE OS creditor - Attachment by

EXECUTORY SALE seller.

$ 1614–1616. Nature of this right 1573-1577. When transit ends-As

1617. How right exercised - Itselrival at destination.

fect. 1578. Goods not yet unloaded. 1579, 1580. — Goods in carrier's IV. OPTION OF SELLER AS TO REX

or other warehouse - At-
tornment.

1618, 1619. What remedies seller 1581-1583. Carrier as bailee for

may pursue. buyer.

1620. Equitable remedies 1584-1587. Deposit of goods in V. THE SELLER'S RIGHT OF RESALE custom-house.

1621. How here considered. 1588-1590. Goods in hands of local truckman.

1. When Title has passed 1591, 1592. How, when con- 1622, 1623. In general

signee refuses to receive 1624. To what kinds of property goods.

right of resale attaches. 1593. Who may take possession for

1625. When right may be exervendee - Agent.

cised. 1594. Administrator As- 1626, 1627. Duty to hold goods signee.

until price due. 1595. Not sheriff.

1628. Buyer's right to redeem 1596. Or mortgagee.

the goods 1597–1601. Actual or constructive 1629, 1630. Seller as agent of the possession by purchaser.

buyer. 1602. Effect of part delivery. 1631. Buyer as agent of seller. 1603. Effect of part payment.

1632. Notice of resale. 1604. Effect of taking note.

1633-1636.

1. Notice of seller's

purpose to resell 6. How Stoppage May be Effected.

1637. 2. Notice of time and

place of resale. 1605-1607. No particular method 1638, 1639. Place of resale

necessary — Notice to stop. 1640, 1641. The manner of resale 1608. To whom notice to stop should 1642. Time of resale. be given - Vendee.

1643. Effect of resale in determin1609. Carrier's agent.

ing value 1610. Carrier's lien must be satis- 1644. Title of the purchaser at the fied.

resale.

2. Right of Resale on Executory Com 6. Effect of Stopping the Goods.

tract. 1611. Restores right of possession. 1645, 1646. General considerations 1612. Does not rescind the sale. 1647, 1648. Choice of remedies 1613. Remedy of seller to secure 1649. Nature of right of resale. payment.

1650. How resale should be made

§ 1470. In general.- Although the dealings between the parties may have been such that the title to the goods has passed, still, as has been seen on several occasions, the delivery of the goods by the seller is deemed to be required only upon payment for them, unless the parties have otherwise agreed, and therefore the seller may retain possession until payment is made. This right of the seller grows out of the fact of his previous ownership of the goods, and is in furtherance of the presumed intention of the parties, where no term of credit is given, that the seller shall not part with the possession until the concurrent act of payment is performed.

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§ 1471. — Precisely what is the nature of the seller's right in these cases, the courts have found it difficult to determine. All agree that the seller has at least a lien, and the right is often spoken of as the seller's lien; but it is clear that it is something more than a mere lien, and, if a lien, it is a lien of an unusual sort and with more than the usual characteristics. Thus, in a somewhat early case, the court said that the seller has “not what is commonly called a lien determinable on the loss of possession, but a special interest, sometimes but improperly called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the buyer.” And in a later case? in Rhode Island, the court said: “The vendor's lien is not a right which he acquires, but a right wbich he retains, the vendee never having had either possession or right of possession, in default of payment or tender. It is in the nature of an undisposed-of right in and to the property sold to the defaulting vendee.” unpaid vendor,” says Mr. Benjamin, “with the goods in his possession, has more than a mere lien on them; he has a special property analogous to that of a pawnee."

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$ 1472. — Inasmuch, however, as the seller's interest is often spoken of as a lien, and is at least a lien, and because for

1 Dodsley v. Varley, 12 Ad. & El. 2 Arnold v. Carpenter, 16 R. I. 560, 632

18 Atl. R. 174.

many purposes the right of lien suffices for the protection of the seller, it seems convenient to consider it first as a lien, and to proceed from thence to consider its further characteristics wherein it exceeds a lien.

I.

THE SELLER'S LIEN.

$ 1473. What here included.- Adopting, therefore, the method referred to in the preceding section, there will be consideration of

1. The lien in general.
2. Waiver or abandonment of the lien.
3. Estoppel in favor of a sub-purchaser.
4. Revival of lien on buyer's insolvency.
5. Revival of lien on expiration of credit.
6. Effect of a tender of the price.
7. Effect of claiming the lien.

1. Of the Lien in General.

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$ 1474. Seller has a lien to secure payment.-As stated in the preceding sections, it is everywhere conceded that the seller of goods which still remain in his possession, and concerning which no special agreement as to delivery or payment has been made, has, unless he has waived it, a lien upon those goods to enforce the payment of the price, and may, for that purpose, retain possession of them until the price is paid. This right, of course, implies that the title to the goods has passed

1 So in Diem v. Koblitz, 49 Ohio St. common-law lien, which is only a 41, 29 N. E. R. 1124. 34 Am. St. R. 531, naked right of possession. With the it is said: “The right of the unpaid goods in his possession the rendor vendor with respect to the goods is has a special property in theru which sometimes called a lien; and it is a is parcel of his original ownership" lien in the sense that the vendee, For a more detailed examination upon payment or tender of the price, than is practicable in these pages but not otherwise, may recover them. see Jones on Liens (ed. 1888)

, & SW But it is something more than a mere et seq.

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to the vendee, for the seller can have no lien upon goods which still remain his own.1

§ 1475. What the lien secures.-This lien extends only to the purchase price of the goods. "If, by reason of the vendee's default, the goods are kept in warehouse, or other charges are incurred in detaining them, the lien does not extend to such claim, and the vendor's remedy, if any, is personal against the buyer." It does not extend, for example, to dock charges incurred by one who, in order to preserve his lien, has kept in dock a ship he had repaired during the delay of the owner to receive her and pay the repairs; nor to the claim of a railroad company to demurrage for unreasonable detention of cars before unloading.

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S. E. R. 171; Robinson v. Morgan, 65
Vt. 37, 25 Atl. R. 899; Crummey v.
Raudenbush, 55 Minn. 426, 56 N. W.
R. 1113.

1 Thus, in Arnold v. Delano, 4 Cush. (Mass.) 33, 50 Am. Dec. 754, Adam's Cases, 7, Shaw, C. J., said: "When goods are sold, and there is no stipulation for credit or time allowed for payment, the vendor has, by the common law, a lien for the price; in other words, he is not bound actually to part with the possession of the goods without being paid for them. The term 'lien' imports that by the contract of sale, and a formal, symbolical or constructive delivery, the property has vested in the vendee; because no man can have a lien on his own goods. The very definition of a lien is, a right to hold goods, the property of another, in security for some debt, duty or other obligation."

2 Jones on Liens, § 804; Benjamin on Sales (6th Am. ed.), § 796.

Somes v. Shipping Co., El. BL. & El. 353, 8 H. L. Cas. 338.

4 Mechem's Hutchinson on Carriers, § 478; East Tennessee R. Co. v. Hunt, 15 Lea (Tenn.), 261; Crommelin v. New York & H. R. Co., 4 Keyes (N. Y.), 90.

So, in Putnam v. Glidden, 159 Mass. 47, 38 Am. St. R. 394, 34 N. E. R. 81, it is said: "Where the vendee contends that the property is not his, and treats it as belonging to the vendor, and the vendor elects to keep it for the vendee and sue for the entire contract price, there is no implied contract on the part of the vendee to pay the vendor the expense of keeping it. Whiting v. Sullivan, 7 Mass. 107; Earle v. Coburn, 130 Mass. 596."

See also Burke v. Dunn, 117 Mich. 430, 75 N. W. R. 931; Southwestern Freight Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Southwestern Freight Co. v. Plant, 45 Mo. 517; Ware River R. Co. v. Vibbard, 114 Mass. 447; Safford v. McDonough, 120 Mass. 290: Curtin v. Isaacsen, 36 W. Va. 391, 15

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