This order was transferred upon a resale to the sub-purchaser, but before the possession had actually been changed the original buyer failed and the seller refused to deliver the goods to the sub-purchaser. It was urged in behalf of the latter that the seller was estopped from asserting his lien by reason of the order given, and that the delivery order was to be subjected to the same rules as a bill of lading; but the House of Lords repudiated this position, saying that it was one "for which no authority in the usage of trade or in the law can be shown." § 1506.. In a later English case,' however, the document took the form of a "warrant" for iron, which recited that the iron would not be delivered to any one except the holder of the warrant, and declared that the iron was deliverable f. o. b. to the purchasers or to their assigns by indorse R. & Co. gave their notes as agreed for the purchase price. The goods were not in fact manufactured at this time. On receipt of the order and memorandum, De L. gave his own notes and the acceptances of third persons to R. & Co. in payment for the goods. R. & Co. soon after stopped payment, and made an assignment for the benefit of creditors. Defendants refused to deliver the goods under the order unless they were paid the purchase price, and offered to surrender the notes received by them. In an action upon the contract to recover the value of the goods, held (Ruger, C. J., and Andrews and Danforth, JJ., dissenting), that it was an executory, not an executed, contract, and so passed no title to the goods specified; that the subsequent transactions between the parties did not transform said contract into an executed one; that the delivery of the order to De L. vested no right of property in him, but simply amounted to an assignment to him of the rights of R. & Co. under the contract, and inasmuch as against R. & Co. defendants had the right to refuse to deliver the goods without payment therefor, and after that firm became insolvent they had the same right as against De L. or his assignee. Also held (Ruger, C. J., Andrews and Danforth, JJ., dissenting), that defendants were not estopped from showing the fact that no title passed, or from denying the legal right of plaintiff, as assignee of De L., to a delivery of goods of the same character and quality as described. Also held (Ruger, C. J., Andrews and Danforth, JJ., dissenting), that the question was one of the law for the trial court, and that a submission thereof to the jury was error. Kimberly v. Patchin (19 N. Y. 330); Briggs v. Sizer (30 id. 647); Knights v. Wiffen (L. R., 5 Q. B. 660), were distinguished. 1 Merchants' Banking Co. v. Phoe nix Bessemer Steel Co., L. R. 5 Ch. Div. 205. ment thereon. There was also evidence that the form of this warrant had been settled by eminent counsel many years before for the very purpose of showing that the goods were free from the seller's lien, and that by the custom of the iron trade such warrants passed from hand to hand and were supposed to give a title to the goods free from any vendor's lien; and it was held that the seller was estopped, as against a sub-purchaser who had bought the iron in reliance upon the warrant and the custom, from setting up a lien. § 1507. Warehouse receipts in the United States.-— In the United States, in pursuance of custom and the evident intention of the parties, warehouse receipts, like bills of lading, are usually regarded as representatives of the goods described in them,' and a transfer of the receipt to a sub-purchaser, who acts in good faith and in ignorance of the seller's claims, will have the same effect in divesting the lien as would result from an actual delivery of the goods themselves. As against such a purchaser, who has relied upon its representations, the statements in the receipt that the goods will be delivered to the holder of it operate an estoppel either as against the warehouseman who issued it where he is the seller, or against a 1 See Commercial Bank v. Hurt, 99 Ala. 130, 12 S. R. 568, 19 L. R. A. 701, 42 Am. St. R. 38, Willis. Cas. 595; Burton v. Curyea, 40 Ill. 320, 89 Am. Dec. 350; Second Nat. Bank v. Walbridge, 19 Ohio St. 419. 2 Am. R. 408; Davis v. Russell, 52 Cal. 611, 28 Am. R. 647; Solomon v. Bushnell, 11 Oreg. 277, 3 Pac. R. 677, 50 Am. R. 475; Durr v. Hervey, 44 Ark. 301, 51 Am. R. 594; Merchants' & M. Bank v. Hibbard, 48 Mich. 118, 11 N. W. R. 834, 42 Am. R. 465; Rice v. Cutler, 17 Wis. 351, 84 Am. Dec. 747. 2 Merchant Banking Co. v. Phoenix Bessemer Steel Co., L. R. 5 Ch. Div. 205, where it is said of the sellers: "They issued with their first parcel of goods two documents: the one is an invoice, the other a warrant. The invoice contains every element which is required to make it an ordinary document of title on which the purchaser could obtain the goods: Messrs. Gilead A. Smith & Co. Bought of the Phoenix Bessemer Steel Company, Limited, stacked in these works to your order, to be delivered f. o. b. at Liverpool according to your instructions;' and then follow the details of the steel rails. That is an ordinary document of title, an ordinary invoice sent by a vendor to a purchaser. But they gave to Gilead A. Smith & Co., at their request, at the same time, another document, the iron warrant, the thing which the trade want for former holder of the receipt who would claim a lien against a purchaser from his vendee.1 4. Revival of Lien on Insolvency of Purchaser. 1508. Revival of lien- Insolvency of purchaser before actual delivery. With the actual and unconditional delivery of the goods to the purchaser, the lien, as has been seen, is at the purpose of either raising money by pledging or selling, and that is a totally different thing. It is treated in a totally different way. It begins with these words: 'The undermentioned rails will not be delivered to any party but the holder of this warrant.' Surely that means they will be delivered to the holder; it never means we will keep them and not deliver them to anybody, but sell them for our own benefit and deliver them to the purchaser. The very form of the warrant shows the purpose. In my opinion, considering that they had already given a document of title which was quite clear and independent and satisfactory to the purchaser, this was something they were issuing for a different purpose. It goes on, 'stacked,' etc.; in the same way, we had 'stacked' in the invoice; but the next words are, 'Warrant for these rails deliverable (f. o. b.) to Messrs. Gilead A. Smith & Co. of London, or to their assigns by indorsement hereon.' Does not that mean they are warrants for delivery, and is not the meaning of the thing itself on the face of it, although it may not destroy per se, standing alone, if it had been a single document of title, the vendor's lien, when you consider it is an additional document given at request, and that you must impute some purpose for giving two documents differing in form at the same time, I say, is it rational to impute any other purpose than really the very purpose that it was given them for, namely, the purpose of pledging or selling, as I have no doubt it was? Therefore, I say, in this particular case I think the effect of the two documents and the mode of request is to show that it was really intended by the vendors, and that is special in this case." 1 Thus in Fourth National Bank v. St. Louis Cotton Compress Co., 11 Mo. App. 333, the seller had cotton in warehouse represented by warehouse receipts. He delivered these to his vendee conditionally, but the vendee wrongfully pledged them to an innocent party. Said the court: "The general rule, of course, is, that where the vendor surrenders to the vendee, or to the agents of the vendee, the possession of the subject-matter of the sale, whether by a manual and actual or by a symbolical delivery, the lien is defeated, provided that the vendor does entirely and voluntarily resign possession of the goods. But there are cases in which the vendor, as between vendor and vendee, may retain a lien which he will not be entitled to as against interests of third persons which may intervene. By delivering the warehouse receipts to the freight line, the vendor in the present case seems to have changed the control and do an end, and the goods cannot be regained although the purchaser was then or has since become insolvent. There are, however, many cases in which the seller has expressly or impliedly given his consent to a delivery, but in which no actual delivery as yet has taken place, and it becomes an important question to determine whether the seller may withdraw that consent and prevent an actual delivery until the goods are paid for. § 1509. Where the seller, who has parted with his title, consents that the goods may be delivered without receiving payment for them or security for the price, he obviously relies upon the credit of the buyer, and the fact that the buyer is in good credit at the time he is to receive the goods is clearly the basis of the consent. If, then, before the consent has act ually been consummated by a delivery, the seller discovers that the buyer is insolvent, the whole inducement to the consent is gone and the consent should be no longer operative. § 1510. Insolvency of buyer before expiration of credit. The case of a sale of goods upon a term of credit affords an excellent illustration of the rule. By giving credit for the price the seller manifests his willingness that the buyer may take the goods at once and pay for them at a subsequent time. He thus consents to waive and, if the consent is followed by an actual delivery, he does most unequivocally waive his lien. "But," as was clearly stated by Chief Justice Shaw,1 "the law, in holding that a vendor, who has thus given credit for the goods, waives his lien for the price, does so on one implied condition, which is that the vendee shall keep his credit minion of the property, and he put it in the power of the vendee to do what he actually did, that is, to take the symbol of the property, which, so far as the rights of third persons are concerned, was the property itself, and to pledge it for value under such circumstances as would naturally lead the most vigilant to believe that the property was his own to sell or pledge; we do not see, therefore, how it can be said that, as to third persons, such as the plaintiff in this case, the vendor retained his lien." In Arnold v. Delano, 4 Cush. (Mass.) 33, 50 Am. Dec. 754, Adam's Cas. 7. good." If, therefore, before the goods have actually been delivered, the buyer proves to be insolvent, the consent to deliver them without payment may be withdrawn, the lien revives, and the seller may hold the goods to secure the payment of the price.1 § 1511. The fact that the goods have been measured, weighed, marked or set aside for the buyer, so that the title to them may have completely passed, is not material- the rule supposes that the title may have passed; but if possession of them has not actually been transferred if they still remain in the custody of the seller or under his control,— he may refuse delivery until the price is paid. § 1512. Insolvency of buyer before delivery order complied with.-The same results ensue where the consent has been given in the form of a delivery order either upon the seller himself or his warehouseman or bailee; it may be revoked upon discovery of the insolvency of the buyer before an actual delivery has taken place. The delivery order is, at most, but one form of constructive delivery, and, as is said in a recent case in which the subject was elaborately considered, it is abundantly settled that, as between the vendor and the vendee, where the rights of subsequent purchasers from the vendee are not involved, the lien is not divested by any species of constructive delivery, so long as the vendor retains the actual custody of the goods, either by himself or by his servant or agent. § 1513. —. Thus, where the seller is himself the warehouseman and delivers to the buyer a statement, certificate or delivery order showing that the seller now holds the goods as warehouseman for the buyer or transfers the goods upon his books to the name of the purchaser, still if before payment and actual delivery the buyer becomes insolvent, the lien of the vendor attaches and he may hold as against the assignees of the in See post, § 1508 et seq. 2 Conrad v. Fisher, 37 Mo. App. 353, 8 L. R. A. 147. |