remedies,' unless the seller will discharge the debt which the lien secures.2 § 1569. Absolute sale of goods but purchase price unpaid - Right to reach proceeds.- Where, however, instead of a pledge or mortgage of the goods, they have actually been sold by the first purchaser but the purchase price has not been paid, may the unpaid original seller, whose right to stop the goods themselves is gone, intercept the payment from the subpurchaser and thus reach the proceeds of the goods which otherwise might have been stopped? In an English case,3 in which the question was discussed, Cotton, L. J., stated the question thus: "Except so far as it is necessary to give effect to interests which other persons have acquired for value, the vendor can exercise his right to stop in transitu. It has been decided that he can do so when the original purchaser has dealt with the goods by way of pledge. Here we have rather the converse of that case. There has been an absolute sale of the goods by the original purchaser, but the purchase-money has not been paid. Can the vendor make effectual his right of stoppage in transitu without defeating in any way the interest of the sub-purchaser? In my opinion he can." $ 1570. In a later case, it was held by the court of appeal that the right existed. Two of the judges relied upon the former case, but Bramwell, L. J., declared the position sound regardless of that authority, saying: "What difference is there in principle between the case of a man selling goods on credit for £500 and these being then resold for £600, and the case of the purchaser pledging the goods for £600 with a right of sale by the pledgee? Why, if the vendor can stop the proceeds of sale in the one case, should he not have a right to stop them in the other? What injury is there to the sub-purchaser ?" 1 See Spalding v. Ruding, supra. Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. R. 608 (citing Chandler v. Fulton, 10 Tex. 2; 1 Wait's Ac. & Def.. p. 529, sec. 13). 3 Ex parte Golding, Davis & Co. (1880), 13 Ch. Div. 628, Williston's Cases on Sales, 401. 4 Ex parte Falk (1880), 14 Ch. Div. 446, Williston's Cases, 405. On appeal to the House of Lords,' the decision of the court of appeal was affirmed, but on other grounds. Lord Selborne, however, expressed the opinion that the right of stoppage as against the purchase-money does not exist. The learned English editors of Benjamin on Sale concur in this opinion, but the opinion of Cotton and Bramwell is not without support.3 § 1571. Interception by buyer's creditors-AttachmentGarnishment.—The transit cannot be intercepted, and the seller's right of stoppage defeated, by the intervention of the buyer's creditors, who attach or levy upon the goods as the property of the buyer, or who garnishee the carrier as one having the buyer's goods in his possession. Such attaching or garnishing creditors are in no sense purchasers for value, and they have no rights equal or superior to the rights of the unpaid seller. § 1572. Interception by seller as a creditor-Attachment by seller.- Suggested by the subject-matter of the last section is the question of the effect, upon his later right of stoppage, of an attachment of the goods by the seller as creditor of the buyer a question upon which there is apparent dif 1 Kemp v. Falk (1882), 7 App. Cas. 573, Williston's Cases, 405. Umbenhauer, 107 Ala. 496, 18 S. R. 175, 54 Am. St. R. 114; Harris v. Ten2 Benjamin on Sale (6th Am. ed.), ney, 85 Tex. 254, 20 S. W. R. 82, 34 § 865a. 3 Thus, Professor Burdick (Sales, 230), to whom the writer is indebted for several valuable suggestions in this connection, thinks that the critics have not answered Lord Bramwell's question. 4 Mechem's Hutchinson on Carriers, § 414a; O'Brien v. Norris, 16 Md. 122,77 Am. Dec. 284 [citing Smith v. Goss, 1 Camp. 282; Naylor v. Dennie, 8 Pick. 199, 19 Am. Dec. 319; Buckley v. Furniss, 15 Wend. 137, 144; Butler v. Woolcott. 2 Bos. & Pul. N. R. 64; Nicholls v. Le Feuvre, 2 Bing. N. C. 83; Hays v. Muille, 14 Pa. St. 48]; Bayonne Knife Co. v. Am. St. R. 796; Seymour v. Newton, 105 Mass. 272; Durgy Cement Co. v. O'Brien, 123 Mass. 12; Sherman v. Rugee, 55 Wis. 346, 13 N. W. R. 241; Estey v. Truxel, 25 Mo. App. 238; Farrell v. Railroad Co., 102 N. C. 390, 9 S. E. R. 302, 11 Am. St. R. 760; Rucker v. Donovan, 13 Kan. 251, 19 Am. R. 84; Morris v. Shryock, 50 Miss. 590; Inslee v. Lane, 57 N. H. 454; Kitchen v. Spear, 30 Vt. 545; Calahan v. Babcock, 21 Ohio St. 281, 8 Am. R. 63; Wood v. Yeatman, 15 B. Mon. (Ky.) 270; More v. Lott, 13 Nev. 376. 5 Chicago, etc. R. Co. v. Painter, 15 Neb. 394, 19 N. W. R. 488. ference of opinion. Thus Mr. Bishop' says that "should the seller, with full knowledge of the facts, attach them as the property of the buyer, instead of stopping them as in transits, this right is gone. But if he is ignorant of the fact that their transit has not ended, and by reason thereof takes the like step, he may stop them and decline to press his suit, on the truth coming to his knowledge." The Texas court, however, holds that there is no inconsistency in the two acts and hence that no waiver results. § 1573. When transit ends - Arrival at destination.- The transit, ex hypothesi, continues, and the right of stoppage may be exercised, until the goods have arrived at their destination and have come into the actual or constructive possession of the buyer. What that destination is, within the meaning of this rule, while usually clear, is sometimes a question very difficult to determine, and gives rise, under the attempted application of the same rule, to decisions which can scarcely be reconciled. In general, for the purpose of determining the right of stoppage, that place must be deemed the destination which has been agreed upon or named as such at the time of the original shipment by the seller, and the place at which, as has been seen. the goods will remain unless and until some new impetus or direction is given them by the buyer or his agent. § 1574. "If the goods have so far reached the end of their journey," it is said in a recent case, "that they wait for prised that their transitus has not terminated, does not constitute a waiver of the right of stoppage, if it 1 Bishop on Contracts (ed. 1887), § 802. To same effect: 5 Wait's Actions & Defenses, 616. 2 Citing Woodruff v. Noyes, 15 be asserted in a reasonable time, and Conn. 335. 3 Citing Calahan v. Babcock, 21 Ohio St. 281, 294; s. c., 8 Am. R. 63 (where the court say: "The commencement of an action against the vendee by the attorney of the vendor of goods on credit, for their purchase price, without the vendor's knowledge, and before either has been ap the action for their price be not pressed, which the record shows to have been the facts in this case") Allyn v. Willis, 65 Tex. 65, doubting Halff v. Allyn, 60 Tex. 278 5 See ante, § 1559. 6 In re Gurney, Ex parte Hughes, 67 L. T. (N. S.) 598. new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and if without such orders they will remain stationary, the transitus is at an end. "But where a place is fixed by the directions given by the buyer to the seller as the ultimate destination of the goods, and a fortiori if there is an express stipulation as to their destination in the contract of sale, the transit is not at an end until the goods reach that place. "The first thing, then, one has to ascertain is whether or not there was a destination fixed by the instructions to the vendors at any time before the transit commenced. These directions may be given at the time of the order, or at some later period prior to the commencement of the transit." § 1575. To the same point it is said, in another case,1 that "where goods are bought to be afterwards dispatched as the vendee shall direct, and it is not part of the bargain that the goods shall be sent to any particular place, in that case the transit only ends when the goods reach the place ultimately named by the vendee as their destination;" and it is further said that the principle to be deduced from the cases is, "that where goods are sold to be sent to a particular destination, the transitus is not at an end until the goods have reached the place named by the vendee to the vendor as their destination." The application of these principles to the ever-varying combinations of fact is extremely difficult, and leads, as has been noticed, to apparent contrariety of result. Each case must be determined in the light of its own facts, and seemingly slight differences are often deemed sufficient to warrant different conclusions. § 1576. In a leading case2 in New York, sometimes. thought to press the right of stoppage as far, at least, as it can 1 Per Bowen, L. J., in Kendal v. Marshall, 11 Q. B. Div. 356, citing per Bailey, J., in Coates v. Railton, 6 B. & Cress. 422. 2 Covell v. Hitchcock (1840), 23 Wend. (N. Y.) 611, referred to ante, § 1559, note, and commented upon and doubted in Sawyer v. Joslin, legitimately go, the plaintiff in New York city had sold to one Graves, a country customer, a quantity of goods to be forwarded to the latter at his place of business at Willardsburgh, N. Y. Graves directed the goods to be shipped on board a cited in the following note. To like effect is Halff v. Allyn (1883), 60 Tex. 278. In Bethell v. Clark (1888), 20 Q. B. Div. 615, Williston's Cases on Sales, 413, Clark & Co. of Wolverhampton had sold goods to Tickle & Co. of London. The order for the goods did not specify any place to which they were to be sent, but later the buyers wrote to the sellers, "Please consign the ten hogsheads of hollow ware to the 'Darling Downs,' to Melbourne, loading in the East India Docks here." The goods were forwarded to the ship named, but, before they were on board, the sellers learned that the buyers were insolvent and attempted to intercept them. They failed in this effort and the ship sailed for Melbourne with the goods on board, but before she arrived at Melbourne the sellers notified the ship-owners of their claim of stoppage. It was claimed that the ship "Darling Downs" was the destination of the goods and that therefore the stop page was too late; but the queen's bench division and the court of appeal both held that Melbourne was the destination and that therefore the stoppage was effectual. Lord Esher, M. R., in delivering his judgment in the court of appeal said: "In this case the vendors being unpaid and the purchasers having become insolvent, according to the law merchant the vendors had a right to stop the goods while in transitu, although the property in such goods might have passed to the purchasers. The doctrine of stoppage in transitu has always been construed favorably to the unpaid vendor. The rule as to its application has been often stated. When the goods have not been delivered to the purchaser or to any agent of his to hold for him otherwise than as a carrier, but are still in the hands of the carrier as such and for the purposes of the transit, then, although such carrier was the purchaser's agent to accept delivery so as to pass the property, nevertheless the goods are in transitu and may be stopped. There has been a difficulty in some cases where the question was whether the original transit was at an end, and a fresh transit had begun. The way in which that question has been dealt with is this: Where the transit is a transit which has been caused either by the terms of the contract or by the directions of the purchaser to the vendor, the right of stoppage in transitu exists; but if the goods are not in the hands of the carrier by reason either of the terms of the contract or of the directions of the purchaser to the vendor, but are in transitu afterwards in conse quence of fresh directions given by the purchaser for a new transit, then such transit is no part of the original transit, and the right to stop is gone. So, also, if the purchaser gives orders that the goods shall be sent to a particular place, there to be kept till he gives fresh orders as to their destination to a new carrier, the original transit is at an end when they have reached that place, and any further |
