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served. In a leading case,' the seller took from the master of the ship a bill of lading making the goods deliverable to the seller's order or assigns, and this was held to subject them to the seller's disposition upon the buyer's bankruptcy. The seller's right, however, in this case, as the court pointed out, was more than a mere lien: it was a reservation of the jus disponendi.2
Shipment by carrier designated by the buyer. The fact that the carrier to whom the goods are delivered for transportation is one named by the buyer does not defeat the right of stoppage. "A delivery to a carrier under such cir cumstances vests title in the vendee and places the goods subject to his risk, but the vendor does not lose his right of stoppage in transitu while the goods are in transit to the buyer."3
§ 1552. Shipment through purchasing agent of buyer. So where goods were delivered to the purchasing agent of the vendees to be transmitted by him to the vendees' factory in another State, the right of stoppage continued. The agent, said the court, stood "rather in the position of a mere forwarding agent than in that of an agent to receive the goods for the vendees' use; and no point is clearer than that a vendor, where the right to stop exists at all, may stop the goods in every sort of passage to the hands of the purchasers."4
§ 1553. How long the transit continues In general.— The transit being thus considered to begin when the goods are placed in the hands of some intermediary or middleman for transportation to the buyer, it will, in general, be deemed to continue so long as the goods remain in the custody of such an
Docks, 6 Exch. 543. See also Van
1 Turner v. Trustees of Liverpool 306, 45 Atl. R. 35 [citing Grout v. Hill, Gray (Mass.), 361; Rowley v. Bigelow, 12 Pick. (Mass.) 307; Gibson v. Carruthers, 8 M. & W. 321].
4 Aguirre v. Parmelee (1853), 22 Conn. 475.
2 As to this, see ante, § 769 et seq.
intermediary or middleman for the purposes of transportation and until they have reached that destination to attain which the transit was begun.
$ 1554. — It is not necessary that the middleman or intermediary referred to should in all cases be a carrier. In the course of their journey the goods may at various times have occasion to pass through or temporarily remain in the hands of warehousemen, depositaries or forwarders; and all such persons whose employment and function is to expedite the transit are as much middlemen, and the goods in their possession are as much in transit, as though carriers, strictly speaking, were alone involved.!
$ 1555. — There may, however, be cases in which the goods may be intercepted, and their transit terminated, before they have reached the destination which originally was contemplated, as well as cases in which the property in the goods, while yet in transit, may have been so transferred by the buyer to another that they would not be the property of the former in the event and at the time of his subsequently discovered insolvency. Each of these classes of cases will therefore require consideration.
$ 1556. Buyer may intercept the goods.— The rule is clearly settled that the vendee, if he sees fit, may meet the goods upon the way
before their arrival at their contemplated destination, and take them into his own possession; and that such an interception will terminate the seller's right of stoppage.? An instance of this sort occurs where the buyer sells the goods yet to arrive and then obtains or enables his vendee to obtain them from the carrier at a point short of their original destination.
Mechem's Hutchinson on Carriers, & Pul. 457; London & N. W. Ry. Co. $ 416; Jones on Liens, S 922.
v. Bartlett (1861), 7 H. & N. 400; Se? Mechem's Hutchinson on Carriers, comb v. Nutt (1853), 14 B. Mon. 261; $ 418; Whitehead v. Anderson, 9 M. Reynolds v. Railroad Co., 43 N. H. & W. 518; Mills v. Ball (1801), 2 Bos. 580.
It is not indispensable that the buyer shall take the goods into his actual possession. He may here, as in other cases to be hereafter noticed, obtain a constructive possession of them, as by inducing the carrier, warehouseman, or other intermediary, to hold them thereafter not for carriage, but on deposit as his bailee; or he may give the goods a new destination and thus start them upon a fresh transit which the original seller cannot terminate.
Is carrier's consent necessary?-In an English case it is said that "if the vendee take the goods out of the possession of the carrier into his own before their arrival, with or without the consent of the carrier, there seems to be no doubt that the transit would be at an end; though, in the case of the absence of the carrier's consent, it may be a wrong to him, for which he would have a right of action." On the other hand it was held by the Texas court that there had been an effectual stoppage of the goods notwithstanding that "they had been by the grossest fraud anticipated on the way, and the marks changed and a new bill of lading taken in the name of a fictitious firm."2
§ 1558. Interception by buyer's agent Agent to receive or forward. It is not indispensable, moreover, that the buyer shall act in person; for the goods, while on their journey, may come into the hands of some agent of the buyer who has authority to give and who gives them a new direction which will terminate their transit as originally contemplated. Whether an intermediate delivery to an agent operates or not to terminate the transit is a question often difficult of determination.
§ 1559. —. In a leading case upon this subject, the following language was used: "When an intermediate delivery occurs, before the goods reach their ultimate destination, if the
1 Per Parke, B., in Whitehead v. Anderson (1842), 9 Mees. & Wels. 518. But see criticisms upon this view. Benjamin on Sale (6th Am. ed.).
2 Poole v. Houston & T. C. Ry. Co. (1882), 58 Tex. 134.
3 Cabeen v. Campbell, 30 Pa. St. 254, citing and relying upon Dixon
party to whom they are delivered has authority to receive them, and give to them a new destination not originally intended, the transitus is at an end. They have then reached the ultimate destination intended by both buyer and seller. But if the middleman be a mere agent to transmit the goods in accordance with original directions, the vendor's right continues. The rule may be stated as follows: If in the hands of
v. Baldwin, 5 East, 175. To the same Pratt, 17 N. Y. 249, and distinguished effect is Hays v. Mouille, 14 Pa. St. 48. from the rule thought applicable to
In Becker v. Hallgarten, 86 N. Y. the facts of that case. There the 167, Willis. Cas. 420, Adam's Cas. 43, suspense in transportation was temit appeared that W. & B. and B. & porary, and to be resumed at a future S. were merchants in Berlin. The time in the direction already given former sold goods to the latter on by the vendors. But, in the case becredit, and at their direction for fore us, not only is the actual fact warded them to Becker at like that in Dixon v. Baldwin, but Bremen. B. & S. pledged the goods if the detention at Bremen was origto G., and gave him an order on inally intended only to give the venBecker that the latter should hold dees an opportunity to determine by the goods subject to G.'s order. G. which of several routes, or at what shipped the goods to New York, and times - as in Harris v. Pratt,- the subsequently W. & B. attempted to goods should go on, we have the adstop them in transit because of the ditional vital circumstance before insolvency of B. & S. Said the court: adverted to, of a complete possession ** It has been held that the delivery and control by the vendees, and its to the rendee, which puts an end to transfer to a third party, who also the state of passage, may be at a took the actual possession and conplace where he means the goods to trol of the goods, and has since reremain until a fresh destination is tained them. Neither Harris v. Pratt communicated to them by orders nor any of the other cases cited go from himself. Valpy v. Gibson, 4 to the extent of upholding the venC. B. 837; Biggs v. Barry, 2 Curt. dor's lien in such a case.” 259; Bolton v. Railway Co., L. R. 1 “ The goods are regarded as in C. P. 431; also Dixon v. Baldwin, 5 transit until they have passed out East, 175, and this case is approved of the possession of every intermein Covell v. Hitchcock, 23 Wend. 611. diate agency and have been actually [See as to this case, post, § 1576.] delivered to the consignee.” Weber In the case before us it is plain that v. Baessler, 3 Colo. App. 459, 31 Pac. they had reached the place for which R. 261. “Delivery to an agent, they were intended, under the direc- whether he be the agent of the ventions given by the vendors, and had dor or the vendee, who holds the come under the actual control of the goods merely for the purpose of vendees. Dixon v. Baldwin, supra, transmission to the vendee, is not is commented upon in Harris v. final delivery.” Id.
the middleman they require new orders to put them again in motion, and give them another substantive destination - if without such new orders they must continue stationary, then the delivery is complete and the lien of the vendor has expired."
§ 1560. As stated further by a learned writer: "The question, and the sole question, for determining whether the transitus is ended is, in what capacity are the goods held by him who has the custody? Is he the buyer's agent to keep the goods, or the buyer's agent to forward them to the destination intended at the time the goods were put in transit?" If he be the former, the transit is at an end; if the latter, the transit still continues and the goods may still be stopped.
§ 1561. A distinguished English lawyer,' commenting on recent English cases upon this subject, says: "I think the following three rules reconcile all the cases which have been correctly decided, and are sufficient to solve the questions which present themselves on this branch of the law relating to stoppage in transitu:
"1. Where goods are sold 'free on board,' the transit is not at an end when the goods have been shipped, but continues until the termination of the voyage; and the goods may be stopped at any time before such termination, although the vendor may not have known, at the time of the sale, for what port they were destined. In the case supposed the goods are, in fact, placed by the vendor in the hands of the carrier, who is not the agent or servant of the purchaser, but an intermediary between him and the vendor.
"2. Where by the agreement between the vendor and purchaser the former is to send the goods to a place, A, and for that purpose they have to be placed in the hands of agents for the purpose of being transmitted to A, the transit is not at an
1 Arthur Cohen, Esq., in 1 Law Quar- Davison v. Collison, "Times," March terly Review, 397. 14, 1885.
2 Kendall v. Marshall, 11 Q. B. D. 856; Ex parte Miles, 15 Q. B. D. 39;
3 Citing Ex parte Rosevear China Clay Co., 11 Ch. Div. 560; Berndtson v. Strang, L. R. 4 Eq. 481, 3 Ch. App. 588.