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solvent purchaser. Even though he may have charged the buyer with rent during the interval, his lien will still revive.
§ 1514. So where the seller is not himself the warehouseman, but the goods are in the custody of another as bailee or warehouseman for the seller, the delivery order, as between the seller and the buyer, has no greater effect, and if the buyer becomes insolvent before payment, and an actual change of possession by attornment or otherwise, the order to deliver may be revoked and the lien will not be lost. The fact that the warehouse is a government warehouse is immaterial.'
§ 1515. Same subject-Taking note-Giving receipted bill, etc.-The revival of the lien is not affected by the fact that the seller has received conditional payment by promissory notes or bills of exchange, certainly where the paper remains in the hands of the seller without negotiation so that it may be delivered up in discharge of the lien," and even, it is said, where the paper has been negotiated and is outstanding at maturity, or matured and outstanding when the insolvency occurred, if the seller has indorsed it. The liability as indorser should have thought so if the warehouse rent had been actually paid." 3 McEwan v. Smith, 2 H. L. Cas. 309; Griffiths v. Perry, 1 El. & El. 680; In re Batchelder, 2 Low. (U. S. Dis. Ct.) 245; Keeler v. Goodwin, 111 Mass. 490, Willis. Cas. 116; Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 147; Thompson v. Baltimore, etc. R. Co., 28 Md. 396.
4 Conrad v. Fisher, supra.
1 Bloxam v. Sanders, 4 B. & Cr. 941; Bloxam v. Morley, 4 B. & Cr. 951; Miles v. Gorton, 2 Cr. & Mees. 504; Townley v. Crump, 4 Ad. & El. 58; Valpy v. Oakeley, 16 Q. B. 941; Grice v. Richardson, 3 App. Cas. 319; Griffiths v. Perry, 1 El. & El. 680; Ex parte Chalmers, 8 Ch. App. 289; Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. R. 348; Arnold v. Carpenter, 16 R. I. 560, 18 Atl. R. 174; McElwee v. Metropolitan Lumber Co., 69 Fed. R. 302, 37 U. S. App. 266, 16 C. C. A. 232.
2 This was the fact in Miles v. Gorton, supra, but Bayley, J.,- distinguishing Hurry v. Mangles, 1 Camp. N. P. 452, a nisi prius decision of Lord Ellenborough — said, “I am of opinion that this fact makes no difference in the present case, and I
5 Milliken v. Warren, 57 Me. 46 [citing Parks v. Hall, 2 Pick. (Mass.) 211; Arnold v. Delano, 4 Cush. (Mass) 41, 50 Am. Dec. 754]; Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. R. 348 [citing, inter alia, Haskell v. Rice, 11 Gray (Mass.), 240; Bloxam v. Sanders, 4 B. & Cress. 941; Clark v. Draper, 19 N. H. 419; Hamburger v. Rodman, 9 Daly (N. Y.), 93].
in such a case operates to continue the relation of the seller as an unpaid vendor.1
$ 1516. Neither is the revival of the lien affected by the fact that the seller, upon the receipt of a bill or note as conditional payment, has given to the buyer a receipted bill or other similar document.?
$ 1517. — If, after the revival of the seller's lien by expiration of the credit, the seller extends further time by taking renewal notes payable at a future date, the revived lien will be waived, unless there was some agreement that this further credit should not have that effect, and that the seller should hold the property as security for the renewal notes.'
§ 1518. Same subject - Instalment delivery - Subsequent appropriation. The revival of the lien, moreover, is not affected by the fact that the contract was for the sale of goods to be delivered by instalments, or of an article to be subsequently appropriated to the contract, instead of a single contract for a specific chattel.
1 McElwee v. Metropolitan Lum- 2 Arnold v. Carpenter, 16 R. L 560, ber Co., 69 Fed. R. 302, 37 U. S. App. 18 Atl. R. 174 (citing Keeler v. Good266, 16 C. C. A. 232 [citing Benj. win, 111 Mass. 490; Solomons v. ChesSales (Corbin's ed.), SS 1130–1185, note ley, 58 N. H. 238; Voorhis v. Olm4; Valpy v. Oakeley, 16 Q. B. 941; stead, 66 N. Y. 113; Southwestern Griffiths v. Perry, 1 El. & El. 680; Freight, etc. Co. v. Stanard, 44 Mo. Grice v. Richardson, 3 App. Cas. 319; 81, 100 Am. Dec. 255; McEwan v. White v. Welsh, 38 Pa. St. 420; Wana- Smith, 2 H. L. Cas. 309; Griffiths v. maker v. Yerkes, 70 Pa. St. 443; Ar- Perry, 1 El & El. 680). nold v. Delano, 4 Cush. (Mass.) 33, 50 3 McElwee v. Metropolitan Lumber Am. Dec. 754; Townley v. Crump, 4 Co., supra. Ad. & El. 58). “The right of reten- 4 Griffiths v. Perry, 1 El. & El. 680; tion," said the court, “is not a right Ex parte Chalmers, 8 Ch. 289. of rescission, and it is not essential *Crummey v. Raudenbush,55 Minn. to the revival of the lien that the 426, 56 N. W. R. 1113, where by the notes of the purchaser shall be de- contract the buyer had his choice of livered up or ready for delivery, three styles of pianos. By the time though in Arnold v. Delano, cited he made his selection he was insolve above, it seems to have been so re-ent, and the seller's lien was held to garded."
$ 1519. What constitutes insolvency.- The term “ insolvency” is not used in any technical sense, and it has substantially the same meaning here that it has in the analogous case, hereafter to be considered,' of stoppage in transitu. It means a general inability to pay one's debts or to meet one's financial obligations. It is not necessary that the buyer shall have made an assignment for his creditors or have been adjudged a bankrupt.“Permitting commercial paper," said the court in one case, “to be dishonored by one engaged in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default, is eridence, and, if unexplained, is proof of insolvency.”
§ 1520. “The right is not limited,” it is further de clared in a late case, "to cases where the insolvency of the vendee occurred after the date of the contract, but exists also even where the insolvency existed at that time but was not discovered by the vendor until afterwards; and, as the presumption of both reason and law is that, where a vendor sold goods on credit, he believed that the purchaser was solvent and able to pay, the burden is on the vendee to prove that the vendor had knowledge of the insolvency, and entered into the contract with that knowledge." 5. Revival of Lien on Expiration of Credit
. $ 1521, Lien revives on expiration of credit.— The lien also revives although the buyer does not become insolrent where the goods are sold on credit but are permitted to remain in the possession of the seller until the term of credit has ex. pired. The buyer cannot thereafter demand delivery without a payment or tender of the price. 1 See post, $ 1539.
3 Tuthill v. Skidmore, supru 2Crummey v. Raudenbush, 55 Minn.
* Crummey v. Raudenbush, supr. 426, 56 N. W. R. 1113; Tuthill v. Skid
6 Benjamin on Sale (6th Am ed.), more, 124 N. Y. 148, 26 N. E. R. 318. $ 825; McElwee v. Lumber Co,
Formal and decreed insolvency is, Fed. R. 302, 37 U. S. App. 266, 16 C of course, enough. Arnold
v. Delano, a A. 232;" Robinson v. Morgan, 65 4 Cush. (Mass.) 33, 50 Am. Dec. 754, Vt. 37, 25 Atl R. 899. Adam's Cas. 7.
6. Effect of Tender of Price.
$ 1522. Lien lost by tender of price.- The seller's lien being a right given him by law to secure the payment of the price, it is clear that, like other liens, it is destroyed by a tender of the price, even though the seller refuses to accept it.'
7. Effect of Claiming Lien. § 1523. Claim of lien does not rescind sale. The assertion of a lien by the seller is in pursuance of the contract and not in rescission of it.? The title does not revest in the seller, but remains in the buyer until in some way his right is foreclosed. The seller may therefore proceed to recover the price if he so elects, being ready to deliver upon payment;' he may foreclose the buyer's right by a resale,* or, according to some authorities, he may elect to treat the contract as rescinded. Until the right has been foreclosed, however, the buyer's title remains, and he may obtain the goods or defeat the lien by payment or tender of the price.
THE SELLER'S RIGHT OF STOPPAGE IN TRANSITU.
$ 1524. What here included. In dealing with the question of the seller's right to stop the goods in transit, it may be helpful to distribute the matter under the following heads:
1. The general nature of the right.
1 Martindale v. Smith, 1 Q. B. 389. low, 12 Pick. (Mass.) 307, 23 Am. Dec. See also Cory v. Barnes, 63 Vt. 456, 607; Babcock v. Bonnell, 80 N. Y. 244. 21 Atl. R. 384.
3 See post, $ 1667, et seq. 2 Arnold v. Delano, 4 Cush. (Mass.) 4 See post, & 1621. 33, 50 Am. Dec. 754; Rowley v. Bige- 5 See post, $ 1681.
1. The General Nature of the Right.
§ 1525. The origin and nature of the right.-Conceding that, as has been seen in the preceding sections, the seller of goods while yet in his possession has a lien upon them to secure the payment of the price, and, moreover, that even though he may have done those things which under ordinary circumstances would amount to a waiver of his lien, that lien will yet revive if the buyer be found insolvent before the goods have actually been delivered by the seller, the question now remains whether the seller's right can be pushed still further so that it may be exercised against the goods if the buyer be found insolv ent after the goods have left the actual possession of the seller and are in the hands of a carrier for transportation to the buyer, but before the latter has in fact received them? That such a right may be exercised is now unquestionably conceded, and the name that has been given to it is the familiar one of stoppage in transitu.
$1526. - What was the precise nature and origin of the right was, in times past, the subject of some uncertainty and doubt; but it seems now to be generally conceded, not withstanding Lord Campbell's assertion 1 that the doctrine of stoppage in transitu had no more relation to the seller's lien than the doctrine of contingent remainders, that the right of stoppage is merely an extension of the seller's lien. It is moreover, clearly now a legal remedy, though undoubtedly of equitable origin. "The right to stop goods in transitu," said Chief Jus
In McEwen v. Smith, 2 H. L. Cas. 309.
2 In Gibson v. Carruthers, 8 M. & W. 321. 338, Lord Abinger, C. B., said: "Although the question of stoppage in transitu has been as frequently raised as any other mercantile question within the last hundred years, it must be owned that the principle on which it depends has never been either settled or stated in a satisfactory manner.
"In courts of equity it has been a received opinion that it was founded on some principle of common law. In courts of law it is just as much a practice to call it a principle of equity, which the common law has adopted. This was strongly insisted upon by Mr. Justice Buller, in his celebrated judgment in the House of Lords. in the case of Lickbarrow v. Mason, 4 Bro. P. C. 57. It has also been said by Lord Kenyon that it was a prin