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§ 1579. 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,2 "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.

1 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 between 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.

2

§ 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. 250, 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.

3 Calahan v. Babcock, supra. To like effect: Hall v. Dimond, 63 N. H.

351; Harding Paper Co. v. Allen, 65 Wis. 576, 27 N. W. R. 329; Langstaff v. Stix, 64 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." 992

Whether such an arrangement has been made is, of course, usually a question of fact.3

$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.

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§ 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. 36, 18 S. E. R. 83; McFetridge v. Piper, 40 Iowa, 627; Farrell v. Richmond, etc. R. Co., 102 N. C. 390, 9 S. E. R. 302, 11 Am. St. R. 760, 3 L. R. A. 647.

1 Hall v. Dimond, supra, quoting Benjamin on Sale (6th Am. ed.), § 853.

2 Benjamin on Sale, supra; Ex parte Barrow, 6 Ch. Div. 783; Ex parte Cooper, 11 Ch. Div. 68; Ex parte Falk, 14 Ch. Div. 446. See also Wheeling, etc. R. Co. v. Koontz (1900), 61 Ohio St. 551, 56 N. E. R. 471, 76 Am. St. R. 435.

* Harding Paper Co. v. Allen, supra.

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 Mottram v. Heyer (1846), 5 Denio (N. Y.), 629 [quoted in Cart wright v. Wilmerding (1862), 24 N. Y. 521, 537].

2 In Parker v. Byrnes (1871), 1 Low ell, 539, 18 Fed. Cas., p. 1119. Citing Burnham v. Winsor, 4 Fed. Cas. 784; Donath v. Broomhead, 7 Pa. St. 301. To like effect: Sheppard v. Newhall (1893), 7 U. S. App. 544, 4 C. C. A. 352, 54 Fed. R. 306; Harris v. Hart (1857), 6 Duer (N. Y.), 606; Guilford v. Smith (1858), 30 Vt. 49, where the cases are fully reviewed. See also Jones on Liens, § 931 [citing Northey v. Field, 2 Esp. 613; Burnham v. Winsor, 5 Law R. 507, 4 Fed. Cas. 784; Parker v. Byrnes, 1 Lowell, 539, 18 Fed. Cas. 1119: Burr v. Wilson, 13 Up. Can. Q. B. 478; Lewis v. Mason, 36 Up. Can. Q. B. 590; Ascher v. Grand Trunk Ry. Co., 36 id. 609; Mottram v. Heyer, 5 Denio (N. Y.), 629; Holbrook v. Vose, 6 Bosw. (N. Y.) 76, 104; In re Bearns, 2 Fed. Cas., p. 1190, 18 Nat. Bankr. Reg. 500; Hoover v. Tib bits, 13 Wis. 79; Donath v. Broomhead, 7 Pa. St. 301].

In Lewis v. Mason (1875), 36 Up. Can. Q. B. 590, supra, goods purchased

by M. in Hamilton were consigned to him by the sellers at Montreal, being delivered in bond to the railway. On their arrival at Hamilton on February 16th, they were placed in the customs warehouse and M. was notified, but allowed the goods to remain there without making entry or paying dues until May 23d, when the sellers gave notice of stoppage, as M. had become insolvent. M. had previously accepted the sellers' draft for the price, due June 14th, and they had discounted this at the bank; but they took it up at maturity and produced it at the trial. Held, that the stoppage was effectual as against M.'s assignees.

In Donath v. Broomhead (1847), 7 Pa. St. 301, supra, it was held that, to quote the language of the syllabus, "where goods shipped to a vendee arrived at their port of destination, and the vendee paid the freight and gave his note for the price, but the goods, in consequence of the loss of the invoice, were stored in the custom-house and remained there until the dishonor of the note, the vendor's right of stoppage remained."

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;1 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." 2

Whether such an arrangement has been made is, of course, usually a question of fact.3

§ 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. 36, 18 S. E. R. 83; McFetridge v. Piper, 40 Iowa, 627; Farrell v. Richmond, etc. R. Co., 102 N. C. 390, 9 S. E. R. 302, 11 Am. St. R. 760, 3 L. R. A. 647.

1 Hall v. Dimond, supra, quoting Benjamin on Sale (6th Am. ed.), § 853.

2 Benjamin on Sale, supra; Ex parte Barrow, 6 Ch. Div. 783; Ex parte Cooper, 11 Ch. Div. 68; Ex parte Falk, 14 Ch. Div. 446. See also Wheeling, etc. R. Co. v. Koontz (1900), 61 Ohio St. 551, 56 N. E. R. 471, 76 Am. St. R. 435.

3 Harding Paper Co. v. Allen, supra.

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