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$ 1543. - It seems, however, indispensable that the insolvency shall have happened at the time the goods are stopped, or at least at the time they arrive at their destination, and that it is not sufficient if it was then pending but did not happen until later. On this point, the language of Lord Stowell, in an analogous case,' has been approved: 2 “If the person to whom the goods are consigned is not insolvent; if, from misinformation or from excess of caution, the vendor has exercised this privilege prematurely, he has assumed a right that did not belong to him, and the consignee will be entitled to the delivery of the goods, with an indemnification for the expenses that may have been incurred. . . It is not necessary that the person should be actually insolvent at the time. If the insolvency happens before the arrival, it would be sufficient, I conceive, to justify what has been done, and to entitle the shipper to the benefit of his own provisional caution.”
$ 1544. - It is evident, nevertheless, that in those cases in which the question of insolvency is to be determined from the circumstances, the point at which that condition is reached must be voy difficult to define; and that, in many cases, subsequent developments must be material as aiding to determine the character of the previous events.
4. Under What Conditions Stoppage May be Effected.
$ 1545, Goods can be stopped only while in transit,- The right of stoppage in transitu, as its name implies, is one to be exercised only while the goods are on their way to be delivered to the buyer. They must clearly, therefore, be in transit, and in the hands of some third person some middleman between the seller and the buyer — for the purpose of trans
Blum v. Marks, supra; Buckley v. 2 Wilmshurst v. Bowker, 2 Man. & Furniss, 15 Wend. (N. Y.) 137; 2 Redf. Gr. 792, 7 id. 882, Willis. Cas. 218; Railways, 160: O'Brien v. Norris, su- Benedict v. Schaettle, 12 Ohio St. 515, pra; Parsons, Merc. Law, 61].
Adam's Cases, 51. 1 The Constantia, 3 Eng. Adm. 6 Rob. 321.
portation; for, if their transit has not begun, the seller has no occasion to stop the goods, and if it has ended he has no opportunity,— if the goods are still in the seller's hands he has no need to stop them, and if they have reached the hands of the buyer, the seller's right to control them has ceased. As stated by Lord Chelmsford:1 “It is of the essence of the doctrine of stoppage in transitu that during the transitus the goods should be in the custody of some third person intermediate between the seller who has parted with and the buyer who has not yet acquired actual possession."
$ 1546. — It is not material, in the language of Denio, J., whether this middleman "be a carrier, a warehousekeeper, a wharfinger, packer or other depositary, or an agent for the purpose of forwarding, nor by which of the parties to the sale le was employed. He may be the agent of the purchaser, desig. nated, paid and employed by him; yet if the purpose of his employment is to expedite the property towards its destination, or to aid those engaged in forwarding it, the seller's right to stay the final delivery continues. But, however clearly the general principle may be stated, the circumstances of commercial dealings are so various that cases are apt to arise in which its application is a matter of extreme difficulty.”?
$ 1547. Existence of a transit - Goods transported on ship or other vehicle owned or chartered by purchaser.As a consequence of this doctrine that a middleman must intervene, arises the question, somewhat controverted, of the effect of a delivery of the goods upon a ship or other vehicle owned or chartered by the buyer for transportation to him.
There can be no doubt, as a general proposition, that if the buyer sends his own cart or servant for the goods, and thus obtains them, there is no middleman here intervening, there is no transitus, and hence no right of stoppage, unless by contract. or special circumstances the seller has reserved a claim upon the goods.
1 In Schotsmans v. Lancashire Ry. Co., L. R. 2 Ch. App. 332.
2 Harris v. Pratt, 17 N. Y. 249.
$ 1548. Shipment on vessel owned by buyer.-- Where the goods are shipped on board a vessel owned by the vendee, some American cases' make a distinction based upon the destination of the goods, holding that “if they are to be transported not to his residence or to be received by him, but to other markets, there is a termination of the transit and the right of stoppage by the vendor ceases;” but “if they are put on board the consignee's ship to be transported to him, the transit con
transitus after the goods are in the by whom the opinion of a majority purchaser's own cart. There they of the court was delivered, goes into are at home, in the hands of the pur- an elaborate consideration of a dechaser, and there is an end of the livery, actual and constructive, and whole delivery." Berndtson v. Strang, deduces that it is only where the deL. R. 4 Eq. 481, Willis. Cas. 394. See livery is constructive that the right also Van Casteel v. Booker, 2 Exch. of stoppage exists. A delivery on 691; Merchants' Banking Co. v. Phoe- board the consignee's or vendee's nix Bessemer Steel Co., 5 Ch. Div. own ship he calls actual. But a de205; Ogle v. Atkinson, 5 Taunt. 759, livery to the servant or agent of the Willis. Cas. 215.
party is as much actual as if deliv. 1 Newhall v. Vargas, 13 Me. 93, 29 ered to the party himself. And Am. Dec. 489 (from which the quota- whether that servant or agent is tions in the text are made); Stubbs specially deputed for the purpose, or v. Lund, 7 Mass. 453, 5 Am. Dec. 63; some one is deputed having similar Ilsley v. Stubbs, 9 Mass. 65, 6 Am. commissions to discharge for othDec. 29; Rowley v. Bigelow, 12 Pick. ers; whether the vendee employ his (Mass.) 307, 23 Am. Dec. 607.
own vessel or carriage, or causes the In Newhall v. Vargas, supra, the goods to be transported for an adecourt considers the question with. quate compensation in that of anmuch fullness, and after citing Fowo other, does not appear to us to make ler v. McTaggart, 1 East, 522; Inglis any difference. The delivery is actv. Usherwood, 1 East, 515, and Bobt- ual in the one case as well as in the lingk v. Inglis, 3 East, 381, say: "It other. The sale is complete. The is a little remarkable that in Bolin property is transferred. The right of v. Huffnagle, 1 Rawle, 1 (referred to stoppage is not founded upon any in following note). the supreme court imperfection in the sale, nor does it of Pennsylvania, although their at rescind the contract; it only authortention was called to the case last izes the vendor to take the goods cited, decided otherwise; and prin- until the price is paid. Two out of cipally upon the authority of the the five members of the court did cases there commented upon, giving not concur in the judgment cited them an effect and bearing dis- from Rawle. The opinion of the disclaimed by the court by whom they senting judges seems to us to be best were decided. The learned judge, supported by authority.”
tinues for the purpose of stoppage until they come to his actual possession.”
Other American cases, on the other hand, following the English cases in this respect, repudiate this distinction, and hold that where the seller voluntarily delivers the goods upon the buyer's own ship, without doing anything to reserve control over them, there is a termination of the transit, and there fore of the right of stoppage, regardless of their destination.'
§ 1549. Shipment on vessel chartered by buyer.Where the ship is not owned absolutely by the purchaser, bat is chartered by him, the question seems to turn upon the nature of the chartering:? if it be general, as for a definite term, so
1 Schotsmans v. Lancashire, etc. Ry. tination of the goods, and final tetCo., L. R. 2 Ch. 332; Merchants’ Bank- mination of the voyage, as we hare ing Co. v. Phænix Bessemer Steel been to discover the kind of delivery Co., L. R. 5 Ch. Div. 203; Berndtson which terminated the transitus. It v. Strang, L. R. 4 Eq. 481, Willis. Cas. is best to lay down a plain intel394; Turner v. Trustees of Liverpool ligible rule, easy in its application, Docks, 6 Exch. 513, Willis. Cas. 228; and to leave the modification of the Ogle v. Atkinson, 5 Taunt. 759, Willis rule to the contract of the parties Cas. 215; Bolin v. Huffnagle, 1 Rawle The distinction for which Chief Jus (Pa.), 1; Sturtevant v. Orser, 24 N. Y. tice Parsons contends does not seem 538, 82 Am. Dec. 321.
to bave been cordially received by In Bolin v. Huffnagle, supra, the the courts of Massachusetts, nor is court, by Rogers, J., said: “I am it supported by the current of cases aware that Chief Justice Parsons Why the final destination of the [in the Massachusetts cases cited in goods should make the difference is the preceding note] put the case upon not very intelligible, and has not a different principle, but, for the rea- been explained. In this case, acsons I have stated, I cannot concur cording to the authority of Stubbs r. with him in the view he has taken. Lund (supra), if the goods had been He seems to put the right of stop- shipped for New Orleans the transitus page in transitu on the destination would have been at an end, but inof the goods or final termination of asmuch as they were conveyed to the voyage, a distinction which, with Philadelphia the transitus continues due deference, will be found unsatis. The propriety of the rule is certainly factory in its application and pro- not very obvious, nor should mer. ductive of litigation. Once establish cantile cases depend on such subtle the doctrine that the right depends grounds." Two judges dissented. on such subtle distinctions, and we 2 Mr. Benjamin (6th Am. ed., $ 843) shall be as much plagued with cases states the rule as follows: "Whether to settle what is meant by the des. a vessel chartered by the buyer is to
that during that term, whether it be for a single voyage or more, the buyer can be regarded as the owner of the ship, and the master as his servant or agent, the rule above referred to operates, and the right of stoppage does not exist; but if the buyer has simply employed the ship as carrier to transport his goods, the right of stoppage continues until they reach their destination; and it is not material in this respect that their destination had not been communicated to the seller, or that the seller's duties as seller terminated on their delivery to the ship.?
$ 1550. Same subject-Reserving control.-Notwithstanding a delivery upon the buyer's own ship, which would ordinarily amount to a termination of the transit as between buyer and seller, there may, as was intimated in the last section, be such a reservation of the power of control over them as to preserve the seller's right of stoppage.
The right to stop may, of course, be expressly stipulated for, or the circumstances may suffice to show that it had been re
be considered his own ship depends McTaggart, cited 7 T. R. 442, and 1 on the nature of the charter-party. East, 522; Inglis v. Usherwood, 1 If the charterer is, in the language East, 515; Bohtlingk v. Inglis, 3 East, of the law merchant, owner for the 381. See the cases collected in Maule voyage, that is, if the ship has been & Pollock on Shipping (ed. 1881 by demised to him, and he has employed Pollock & Bruce), vol. I, p. 418, and the captain, so that the captain is his a further discussion of the subject in servant, then a delivery on board of Sandeman v. Scurr, L. R. 2 Q. B. 86, such a chartered ship would be a de- and the Omoa Coal & Iron Co. v. livery to the buyer; but if the owner Huntley, 2 C. P. Div. 464. As to what of the vessel has his own captain and amounts to a demise of a ship, see men on board, so that the captain is Meiklereid v. West, 1 Q. B. Div. 428." the servant of the owner, and the 1 Ex parte Rosevear China Clay Co., effect of the charter is merely to se- 11 Ch. Div. 560. In this case James, cure to the charterer the exclusive L. J., said: “The principle is this: use and employment of the vessel, that when the vendor knows that he then a delivery by the vendor of is delivering the goods to some one goods on board is not a delivery to as carrier, who is receiving them in the buyer, but to an agent for car- that character, he delivers them with riage. It is a pure question of inten- the implied right which has been estion in every case, to be determined tablished by the law, of stopping by the terms of the charter-party. them so long as they remain in the Blackburn on Sale, 242; Fowler v. possession of the carrier as carrier.”