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Goods in carrier's warehouse-Attornment. So though the goods have been unloaded and placed by the carrier in his warehouse until the consignee shall call for them and pay the freight and other charges, they are still in the possession of the carrier, subject to his lien, and may be stopped in transit by the seller. As said in a leading case in Ohio,' "the transfer of goods consigned, from the coaches of the carrier by railway to his freight depot or warehouse at the station designated for their discharge in the vicinity of the vendee's residence or place of business, there to await the payment by him of the charges thereon, as a condition precedent to their removal to and delivery at his business house, does not ipso facto constitute a transfer or delivery of possession to him, or to any one as agent of and for him; but is the reasonable exercise of a right and duty by the carrier, in the course and furtherance of their transit, referable to and in virtue of his original employment by and as agent of the vendor to trans
their store, was informed of their arrival, but did not remove them. The next day the goods were at tached at the suit of creditors of the consignees, removed from the car and put in charge of the drayman as a keeper. It was held that the seller's right of stoppage was intact at the time of the attachment and that the seller could recover from the sheriff.
In Kitchen v. Spear (1858), 30 Vt. 545, supra, A, residing in Vermont, purchased goods of B in New York, to be forwarded by railroad to R, where A resided. Immediately on their arrival at R, and before they were placed in the warehouse of the railroad company, A having in the meantime become insolvent, C, a creditor of A, caused the goods to be attached and to be taken directly from the cars and removed away from the railroad. The officer paid the freight upon the goods and retained possession of them under the
attachment until B demanded them of him. Held, that B's right of stoppage in transitu had not ceased at the time of the attachment or of the demand, and that he was entitled to the goods. Sherman v. Rugee (1882), 55 Wis. 346, is much like this case in its facts and holding.
I See Mechem's Hutchinson on Carriers, § 415.
2 Calahan v. Babcock (1871), 21 Ohio St. 281, 8 Am. R. 63. To the same effect: Symns v. Schotten (1886), 35 Kan. 310, Burdick's Cas. 604, 10 Pac. R. 828 [citing Rucker v. Donovan, 13 Kan. 251; O'Neil v. Garrett, 6 Iowa, 480; Buckley v. Furniss, 15 Wend. 137; Covell v. Hitchcock, 23 Wend. 611; Harris v. Pratt, 17 N. Y. 249; Loeb v. Peters, 63 Ala. 243; Newhall v. Vargas, 13 Me. 93; Inslee v. Lane, 57 N. H. 454; Hoover v. Tibbits, 13 Wis. 79; Atkins v. Colby, 20 N. H. 155; Blackman v. Pierce, 23 Cal. 508].
port and deliver. Wherefore, until the vendee in person, or his agent under and for him, shall become custodian in possession, neither the transit of the goods nor the vendor's right of stoppage will be held to have terminated.”
$ 1580. — So, again, it is said that if the goods are forwarded by direction of the vendee to a particular warehouseman, who in receiving them acts as the agent of the vendee, the transit is at an end; but where the warehouseman to whom the goods are directed to be sent receives them as the agent of the carrier, and, while he is holding the goods as such agent for the purpose of collecting freight and charges, the vendor asserts his right of stoppage, the goods will not be considered as in the possession of the vendee so as to cut off that right.'
$ 1581. — Carrier as bailee for buyer.— There may, however, be some new arrangement bet ween the carrier and the purchaser by virtue of which the carrier will cease to hold the goods as carrier and become the mere agent of the buyer for the purpose of holding possession for him; and as such an arrangement terminates the transit it ipso facto terminates the right of stoppage. $ 1582.
As stated in a leading English case, the rule is this: “When goods are placed in the possession of a carrier, to be carried for the vendor, to be delivered to the purchaser, the transitus is not at an end so long as the carrier continues to hold the goods as a carrier. It is not at an end until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the consignee, not as carrier, but as his agent.”
“But," as is said in the case already referred to, “such agency will not be implied from the carrier's original employ
1 Hoover v. Tibbits (1860), 13 Wis. 565, 3 Atl. R. 423; Jeffries v. Fitch79 (89).
burg R. Co., 93 Wis. 230, 67 N. W. 2 Ex parte Cooper, 11 Ch. Div. 68, R. 424, 57 Am. St. R. 919, 33 L. R. A. per James, L. J.
351; Harding Paper Co. v. Allen, 6.5 3 Calahan v. Babcock, supra. To Wis. 576, 27 N. W. R. 329; Langstaff like effect: Hall v. Dimond, 63 N. H. v. Stix, C# Miss. 171, 1 S. R. 97, 60 Am.
ment, and can arise only by showing affirmatively some arrangement or understanding to that effect other than the general words of an ordinary consignment.”
$ 1583. — The carrier's change of character into that of agent to keep the goods for the buyer is not at all inconsistent with his right to retain the goods in his custody till his lien upon them for carriage or other charges is satisfied;' though, as has several times been pointed out, “the existence of the carrier's lien for unpaid freight raises a strong presumption that the carrier continues to hold the goods as carrier and not as warehouseman; and, in order to rebut this presumption, there must be proof of some arrangement or agreement between the buyer and the carrier, whereby the latter, while retaining his lien, becomes the agent of the buyer to keep the goods for him."
Whether such an arrangement has been made is, of course, usually a question of fact.” $ 1584.
Deposit of goods in custom-house.- And, finally, in this direction, the goods, instead of being deposited in the carrier's warehouse, may have been deposited in the customhouse. The effect of such a deposit, upon the termination of the transit, depends largely, as in the preceding cases, upon the peculiar facts and circumstances of each particular case.
$ 1585. — “Where goods are placed in the public store under the warehouse system,” said Chancellor Walworth in an early case, “either in this country or in England, after a perfect entry of them for that purpose, they are to be considered as having come to the possession of the vendee, at the place
R. 49; Williams v. Hodges, 113 N. C. 2 Benjamin on Sale, supra; Ex 36, 18 S. E. R. 83; McFetridge v. parte Barrow, 6 Ch. Div. 783; Ex Piper, 40 Iowa, 627; Farrell v. Rich- parte Cooper, 11 Ch. Div. 68; Ex parte mond, etc. R. Co., 102 N. C. 390, 9 Falk, 14 Ch. Div. 446. See also Wheel. S. E. R. 302, 11 Am. St. R. 760, 3 L. R. ing, etc. R. Co. v. Koontz (1900), 61 A. 647.
Ohio St. 551, 56 N. E. R. 471, 76 Am. 1 Hall v. Dimond, supra, quoting St. R. 435. Benjamin on Sale (6th Am. ed.), S 853. 3 Harding Paper Co. v. Allen, supru.
where he intends they shall remain until he gives further orders for their disposal. . In such a case, I have no doubt that the right of stoppage in transitu should be considered as at an end the moment the goods are thus deposited after a perfect entry for that purpose has been made.” 1
$ 1586. “The mere fact," however, said Lowell, J., “that goods imported from abroad upon the order of a buyer have come into the hands of the officers of the customs, and have been by them put into a warehouse, the buyer exercising no acts of ownership over them, has been held not to terminate the transit.” As stated by Chancellor Walworth in the case first referred to, “the removal of the goods from the vessel to
1 In Bottram v. Heyer (1846), 5 by M. in Hamilton were consigned Denio (N. Y.), 629 [quoted in Cart- to him by the sellers at Montreal, wright v. Wilmerding (1862), 24 N. Y. being delivered in bond to the rail521, 537]
way. On their arrival at Hamilton 2 In Parker v. Byrnes (1871), 1 Low. on February 16th, they were placed ell, 539, 18 Fed. Cas., 1119. Citing in the customs warehouse and M. was Burnham v. Winsor, 4 Fed. Cas. 784; notified, but allowed the goods to reDonath v. Broomhead, 7 Pa. St. 301. main there without making entry or
To like effect: Sheppard v. New- paying dues until May 23d, when the hall (1893), 7 U. S. App. 544, 4 C. C. A. sellers gave notice of stoppage, as M. 352, 54 Fed. R. 306; Harris v. Hart had become insolvent. M. had pre(1857), 6 Duer (N. Y.), 606; Guilford v. viously accepted the sellers' draft for Smith (1858), 30 Vt. 49, where the the price, due June 14th, and they cases are fully reviewed. See also had discounted this at the bank; but Jones on Liens, & 931 [citing Northey they took it up at maturity and prov. Field, 2 Esp. 613; Burnham v. Win- duced it at the trial. Held, that the sor, 5 Law R. 507, 4 Fed. Cas. 784; stoppage was effectual as against M.'s Parker v. Byrnes, 1 Lowell, 539, 18 assignees. Fed. Cas. 1119: Burr v. Wilson, 13 In Donath v. Broomhead (1847), 7 Up. Can. Q. B. 478: Lewis v. Mason, 36 Pa. St. 301, supra, it was held that, to Up. Can. Q. B. 590; Ascher v. Grand quote the language of the syllabus, Trunk Ry. Co., 36 id. 609; Mottram “where goods shipped to a vendee v. Heyer, 5 Denio (N. Y.), 629; Hol- arrived at their port of destination, brook v. Vose, 6 Bosw. (N. Y.) 76, 104; and the vendee paid the freight and In re Bearns, 2 Fed. Cas., p. 1190, 18 gave his note for the price, but the Nat. Bankr. Reg. 500; Hoover v. Tib goods, in consequence of the loss of bits, 13 Wis. 79; Donath v. Broom- the invoice, were stored in the cushead, 7 Pa. St. 301).
tom-house and remained there until In Lewis v. Mason (1875), 36 Up. the dishonor of the note, the vendor's Can. Q. B. 590, supra, goods purchased right of stoppage remained.”
the public store by the custom-house ollicers, until the consignees should entitle themselves to claim the possession and disposition of the goods by completing their entry by the payment of the duties, was merely substituting the public store in the place of the vessel as a place of deposit in the transmission of the goods to their place of destination; which place of destination was the place where the consignees expected to sell the goods, or to deposit them to await their further order and direction."
$ 1587. - On the other hand, however, as has been stated, when the consignee has duly entered the goods and done all that is required of him in that regard, the transit is at an end.? Such an entry, in the language of Ritchie, J., of the supreme court of Canada, is to be deemed “an acceptance of the goods by the consignee, and equivalent to taking actual possession of them; and the warehouse becomes the warehouse of the vendee, as between him and the vendor, and consequently the transitus, so far as the vendor is concerned, is at an end and his right of stoppage ceases to exist." 3 $ 1588.
Goods in hands of local truckman,- The goods may still be in transit, though they have passed out of
1 In Mottram v. Heyer, supra. the prurchaser had by his personal
2 Sheppard v. Newhall (1893), 7 U. S. and affirmative act disposed of the App. 544, 4 C. C. A. 352, 54 Fed. R. goods, and his assignees had given 306, supra. In this case the goods bond for the payment of the duties were entered in the name of the pur- upon them and deposited them in chaser, a bond for the payment of his own name in a bonded wareduties given and a warehouse receipt house, for which they held the wareissued to the assignees before any house receipt.” Fraschieris v. Henattempt at stoppage. “In respect to riques, 6 Abb. Prac. (N. S.) 251; Wiley these goods," said the court, v. Smith, 1 Ont. App. 179, and Cart. have no difficulty in holding that wright v. Wilmerding, 24 N. Y. 521, the transit had ended before the at- 537, were relied upon. See also Bur. tempt was made to stop them. dick on Sales, 234, citing Cartwright They had left the hands of the car- v.Wilmerding, supra; Lewis v. Mason, rier, and the place of their deposit supra, and Wiley v. Smith (1877), 3 was in no way connected with their Can. Sup. Ct. R. 1. transmission to the purchaser. They 3 In Wiley v. Smith, supra. had reached their destination, and