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if the delivery is really absolute, a usage that it should not terminate the lien would not be operative.
$ 1489. — The seller may also let the buyer into temporary possession in some other character than that of buyer without losing his lien; as, for example, where the buyer temporarily borrows the article or takes it to hold as bailee of the seller.?
Lien not lost if possession secured by fraud. So if by artifice or evasion the buyer obtains possession of the goods, as upon a promise or understanding of immediate payment which afterwards is evaded or denied, the seller, who has done nothing to estop himself or waive his right, may regain possession by virtue of his lien as against any one but a bona fide purchaser for value.3
$ 1491. —How when goods already in possession of buyer.-If, at the time of the sale, the goods are already in the possession of the buyer, with the seller's consent, as where the buyer is holding them as the seller's agent, the transfer of the title will, unless otherwise stipulated, operate as a transfer of the possession, and the lien of the seller will not exist. This result, however, may be changed by the contract of the parties stipulating that a lien shall exist, or that the buyer's possession shall be deemed to be the possession of the seller until the price is paid.
$ 1492. How when buyer has changed character of property.- Where there was a contract of sale of standing timber which the vendee was to cut into wood for the market, and he had cut it and removed a part, it was held that the
i Haskins v. Warren, supra.
3 See Manning v. Hollenbeck (1870), 2 Benjamin on Sale (6th Am. ed.), 27 Wis. 202. $ 807; Tempest v. Fitzgerald (1820), 4 Benjamin on Sale (6th Am. ed.), 3 B. & Ald. 680; Marvin v. Wallis & 802; Jones on Liens, & 813; Edan (1856), 6 El. & Bl. 726; Caldwell v. v. Dudfield, 1 Q. B. 302; Warden v. Tutt (1882), 78 Tenn. (10 Lea), 258. Cf. Marshall, 99 Mass. 305; Linton v. Marseilles Mfg. Co. v. Morgan (1881), Butz, 7 Pa. St. 89, 47 Am. Dec. 501. 12 Neb. 66.
seller had no lien on the residue for the price. “We know of no case,” said the court," where such a right has been recornized after the vendee has, at his own expense, in pursuance of the contract of sale, changed the character of the property, and by his own labor and money added to its value. By these acts the vendor must be deemed to have parted with his possession and control of the property. The vendee, by himself and his agents, had taken it into his actual possession, and incorporated with it the labor bestowed by him in preparing it for sale. There was therefore such a change of possession from the vendor to the vendee as to defeat any right of lien in the vendor.”
$ 1493. —How when goods in possession of a bailee.Where, however, the goods, at the time of the sale, are in the possession of a warehouseman or other bailee, not the purchaser, the lien of the seller is not lost by the mere fact of the sale or by simple notice to the bailee that the sale has been made; it will continue until by some act or some agreement the relation of the bailee to the seller has been changed and he has consented to become the agent of the buyer in retaining the custody of the goods.
$ 1494. — But this consent, by the weight of authority, may be given in advance. Thus, where the bailee is a warehouseman and issues receipts designed and used as representaltives of the goods in whosesoever hands the receipts may subsequently come in the course of commercial transactions, a transfer of the receipt, as will be seen hereafter, will transfer the goods themselves without attornment, so far as the rights
1 Douglas'v. Shumway (1859), 13 Anderson, 2 Camp. 243; Bentall . Gray (Mass.), 498, distinguishing Ar- Burn, 3 B. & C. 423; Lackington v. nold v. Delano, 4 Cush. 33, 50 Am. Atherton, 7 M. & G. 360; Farina Dec. 754.
v. Home, 16 M. & W. 119; Godts T. 2 Jones on Liens, S 829; In re Batch- Rose, 17 C. B. 229; Bill v. Bament, 9 elder, 2 Low. (U. S. D. C.) 245, 2 Fed. M. & W. 36; Lucas v. Dorrien, 7 Tannt. Cas. 1013; Benjamin on Sale (6th 278; Woodley v. Coventry, 2 H. & C. Am. ed.), § 803 (citing Harman v. 164].
of subsequent holders of it are concerned who have no notice of the seller's claims.
$ § 1495. — How when goods on public wharf or the premises of a stranger.- When the goods at the time of the sale are lying upon a public wharf or on the premises of a stranger not a bailee of the seller, an actual delivery may more easily be found. Thus, where the sellers of timber deposited it upon a public wharf, and there permitted the buyer to measure and number each tree, mark it with his initials and expend money in “squaring" it, it was held that there was such an actual delivery as divested the seller's lien, even though the buyer became insolvent before paying for the timber. And the same result was reached where the timber was lying upon the premises of a stranger and the buyer took away a part and marked all of the residue. The trees being on the land of a stranger, it was, said the court, “the same thing in effect as if they had been in the warehouse of the purchaser, for he was to enter the land when he pleased to take them away.”?
$ 1496. - How when goods are delivered to a carrier.An unconditional delivery of the goods to a carrier as the buyer's agent for transportation to the buyer terminates the seller's lien; but this would not be true where the seller is under contract to deliver and the carrier acts as the agent of the seller. And even in the former case, the seller, as will be seen, may stop them in their transit if the buyer proves to be insolvent.
$ 1497. —The seller's lien, however, is not lost, says Mr. Benjamin,“ “ by sending goods on board of a vessel in accord
1 Cooper v. Bill, 3 Hurls. & Colt. Dodgson, 2 M. & W. 653; Norman v. 722.
Phillips, 14 M. & W. 277; Meredith 2 Tansley v. Turner, 2 Bing. N. Cas. v. Meigh, 2 El. & Bl. 364; Cusack 151.
v. Robinson, 1 B. & S. 299; Hart v. 3 Benjamin on Sale (6th Am. ed.), Bush, El., Bl. & El. 494; Smith v. 8 804 (citing Dawes v. Peck, 8 T. R. Hudson, 6 B. & S. 431). 330; Wait v. Baker, 2 Ex. 1; Fragano 4 Benjamin on Sale (6th Am. ed.), v. Long, 4 B. &C. 219; Dunlop v. Lam- $ 824. bert, 6 CL & F. 600; Johnson v.
ance with the buyer's instructions, even though by the contract the goods are to be delivered free on board to the buyer, if the vendor on delivering the goods takes1 or demands a receipt for them in his own name, for this is evidence that he has not yet parted with his control; the possession of the receipt entitles him to the bill of lading; and the goods, represented by their symbol, the bill of lading, are still in his possession, which can only be divested by his parting with the bill of lading. But if the vessel belonged to the purchaser, the delivery would be complete under such circumstances, and the lien lost."3
$ 1498. Transfer by bill of lading.-Bills of lading being regarded as the representatives of the goods which they describe, their indorsement and delivery operate not only to transfer the title, but as a complete delivery of the goods which divests the seller's lien," though he may, as will be seen, still avail himself of his right to stop them in their transit in a proper case."
$ 1499. Effect of delivery of part of the goods. As a general rule the delivery of a part of the goods does not operate to release the lien as to the residue. The seller may voluntarily surrender part and retain the rest; and the lien will then attach to the part retained for the price of the whole." As declared in a recent case, the delivery of a part operates as a delivery of the whole only where it is plain “that such partial delivery was intended as a symbolical delivery of the
1 Citing Craven v. Ryder, 6 Taunt. on Sale (6th Am. ed.), § 805; Tanner 433. v. Scovell, 14 Mees & Wels. 28; Ex
2 Citing Ruck v. Hatfield, 5 B. & parte Cooper, 11 Ch. Div. 68 (explainAld. 632. ing Slubey v. Heyward, 2 H. Bl. 504;
3 Citing Cowasjee v. Thompson, 5 Hammond v. Anderson, 1 B. & P. Moore, P. C. 165. N. R. 69); Bunney v. Poyntz, 4 B. &
4 See Mechem's Hutchinson on Car- Ad. 568; Dixon v. Yates, 5 B. & Ad. riers, § 129. 313; Williams v. Moore, 5 N. H. 235; Benjamin on Sale (6th Am. ed.), Wanamaker v. Yerkes, 70 Pa. St. § 813. 443; McElwee v. Metropolitan Lumber Co., 69 Fed. R. 302, 37 U. S. App.
6 Post, § 1525 et seq.
7 Jones on Liens, § 834; Benjamin 266, 16 C. C. A. 232.
whole and as a waiver of any right of retention as to the remainder.” 1
$ 1500. Effect of part payment.- A part payment for the goods, like the part delivery considered in the preceding section, does not operate to defeat the lien as to the residue. If credit be given for the remainder, it will, like the giving of credit for the whole price, suspend the lien during the period given, but the lien will revive upon the expiration of the credit, or upon the insolvency of the purchaser, if the goods remain in the actual possession of the seller.
3. Estoppel in Favor of Sub-purchasers. $ 1501. Lien good against sub-purchaser unless seller estopped — Estoppel by conduct.— This right of the seller to assert his lien notwithstanding a constructive delivery is not, in the absence of a statute such as the English Factors Act, affected by a resale to a third person, unless the seller has done something to estop himself from setting up his lien against such sub-purchaser. In the absence of such estoppel, the subpurchaser acquires no greater rights than his vendor— the original vendee — then had. Such an estoppel may arise either
1 McElwee v. Lumber Co., supra. is estopped from denying or contra
2 Jones on Liens, $ 801; Crummey vening by the assertion of a lien. v. Raudenbush, 55 Minn. 426, 56 N. W. What are these rights, and what is R. 1113; Robinson v. Morgan, 65 Vt. their origin? As mere sub-purchas37, 25 Atl. R. 899.
ers of lumber in the actual possession 3 See ante, § 1479.
of the vendor they only acquire the 4 See post, S 1521.
right and interest of the vendees. 5See post, $ 1508 et seq.
If at the time they bought the vendor 6 Thus in McElwee v. Metropolitan had no lien no right of retention Lumber Co., 69 Fed. R. 302, 37 U. S. then they would acquire the same App. 266, 16 C. C. A. 232, it was said: right to demand delivery. But the “If the defendant in error (the lum- right of a vendee who has bought on ber company] is debarred from as- credit is not an absolute right to deserting a vendor's lien upon the mand delivery. The right is dependinsolvency of the vendees, it must be ent upon the preservation of his because the plaintiffs in error [the credit; and, if he becomes insolvent sub-purchasers] have acquired rights before he obtains actual possession, as sub-purchasers which the vendor the lien of the vendor revives, and the