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the hands of the carrier who brought them to the town or city of their destination, and are in the possession of a local truckman or other similar carrier for transportation to the buyer's place of business. Whether they are still in transit must depend upon the circumstances of the particular case. If the buyer sends his own servant and truck for the goods and the servant receives them for the buyer, the transit is at an end. And so, it has been held, is the transit ended where the local carrier has general authority to receive and receipt for all goods coming for the buyer, or special authority to receive the particular goods in question, and does so receive and receipt for them.

$ 1589.

But where, on the other hand, the goods are in the hands of the local carrier as a continuation of the originai transit, as where, for example, the railroad company which

1 In O'Neal v. Day, 53 Mo. App. 139, pretense that Johnson, in receiving a local carrier, acting under a previ- and receipting for the goods, acted ous general authority to receive all as agent of the common carrier. In goods consigned to the buyer, re- White v. Mitchell, 38 Mich. 390 (post), ceived the goods in question at the and in Inslee v. Lane, 57 N. H. 454 freight office and took them to the (ante), where a delivery to a local buyer's store, but the buyer there re- carrier under similar circumstances fused to receive them because of was held not to terminate the transit, a temporary inconvenience and di- the vendee had absconded before the rected them to be taken back to the arrival of the goods, and it was held freight office. This was done and the that his absconding at once put an goods were then attached by the buy- end to the local carrier's authority to er's creditors. Held that, prima facie receipt for him. In Mason v. Wilson, at least, the transit was at an end upon 43 Ark. 172 (post), the vendee had the receipt of the goods by the local notified the vendor before the arrival carrier. Said the court: “If Johnson, of the goods that he would not rethe local carrier, was the agent of the ceive them on account of insolvency, attachment debtor, with full author- which was held to terminate the auity to receive and receipt for the thority of a local carrier to receive goods, then upon the goods being de. them for the vendee under a general livered by the common carrier to authority to receive and receipt. The Johnson, and upon his receipting for case of Macon, etc. Ry. Co. v. Meador, them, the transit was at an end. 65 Ga. 705, was decided under a clause There is no pretense that the goods of the Georgia code which provides were to be delivered by the common that the right of stoppage in transitu carrier at the store, or at any other continues until the vendee obtains place but its depot; nor is there any actual possession of the goods."

brought the goods to the buyer's town maintains its own trucks for the delivery of goods to the places of business of the consignees, or where the railroad company voluntarily delivers the goods to some local carrier to be taken to the buyer, the transit would doubtless be held to continue while the goods were in the hands of such a carrier.!

$ 1590. And so it has been held that the transit continues, notwithstanding a delivery to a local transfer company, acting under previous general orders from the consignee, where the local carrier receives them for conveyance merely and not as the agent of the buyer to receive and receipt for them.”

1 In White v. Mitchell, 38 Mich. 390, templation still in transitu, and the goods consigned to one Sternhagen, right of stoppage is not ended. Said on their arrival at their destination, the court: “The transfer company East Saginaw, were placed by the received the goods, under a previons railway company in the hands of general order, for the mere purpose Hendrie & Co., a local trucking com- of conveying them to the vendees' pany, for delivery to the consignee, place of business. They were not reand while in the possession of Hen- ceived beyond the mere duty or posidrie & Co. they were attached by the tion of mere carrier for the vendee. consignee's creditors. The court said: There was no absolute actual posses"We see no difficulty about the claim sion of the goods delivered by the of stoppage in transitu. Hendrie & carrier to the vendee. The delivery Co. seem to have been, and on this of them to the transfer company was record it is enough that they may not such delivery. Being solely for have been, intermediate carriers be- the purpose of conveyance, it did not tween the railway and the consignee, have the effect to defeat the plaintjust as the railway was such a car- iff's right of stoppage.” Weber v. rier between the New York carriers Baessler, 3 Colo. App. 459, is to the and East Saginaw. They had no em- same effect. ployment or authority to act for In Halff v. Allyn, 60 Tex. 278, where Sternhagen, and their possession was goods consigned to the purchaser at not his possession. The goods were Blooming Grove arrived at Corsicana, clearly in transit when they were the nearest railroad station and eighttaken."

een miles distant, at which place ? In Scott v. Dry Goods Co., 48 Mo. they were taken possession of by an App. 521, it was held that where a intermediate party and, while in bis transfer company under a previous possession, attached, it was held that general order of the vendee receives if the goods were in the hands of this goods at the destination depot of the intermediate party for the purpose carrier for the mere purpose of con- of forwarding them to their original veying them to the vendee's place of destination, the transit was not ended. business, the goods are in legal con- In Harris v. Tenney, 85 Tex. 254, 20

$ 1591. How when consignee refuses to receive goods. If the vendee refuse to receive the goods upon arrival, either because they do not fulfill the contract, or because, by reason of his insolvency, he is desirous of protecting the seller from loss, the right of stoppage will continue.

Upon this subject Mr. Benjamin ' says: “The question now always turns upon the point whether — First, the buyer has left anything undone for the perfect transfer of the property to himself, in which case, the sale being incomplete, he may honestly decline to complete it to the prejudice of his vendor; or, secondly, whether, although the transfer of the property be complete, the transit into his possession remains incomplete, in which event he may honestly refuse the possession, so as to leave to his vendor the right of stoppage in transitu, which will be equally available to the latter if he can accomplish it before the assignees get possession of the goods.”? $ 1592. -"In some early cases,” says Mr. Benjamin fur

“ ther," before the principles were well settled, countenance was given to the idea that a buyer might rescind a sale after its performance by the actual delivery of tne goods into his possession, if the rescission was accomplished, and the goods returned to the vendor, before the buyer committed an act of bankruptcy;"3 but the ratio decidendi of these cases, he con

"

S. W. R. 68, 34 Am. St. R. 796, it was R. 432, Fortes. 353; Salte v. Field, 5 held that though the goods, by the T. R. 211; Bartram v. Farebrother, 4 direction of the buyer, were on drays Bing. 579; Smith v. Field, 5 T. R. 402; in process of being carried from the James v. Griffin, 2 Mees. & Wels. 6:23; railroad station to the purchaser's Siffken v. Wray, 6 East, 371; Heinekey store, they were still in transit, and v. Earle, 28 L. J. Q. B. 79, 8 E. & B. the seizure of them by the sheriff at 410; Bolton v. Railway Co., L. R. 1 the suit of the buyer's creditors could Com. Pl. 431; Whitehead v. Andernot defeat the right of stoppage. son, 9 Mees. & Wels. at p. 529.

1 Benjamin on Sales (6th Am. ed.), 3 Mr. Benjamin here refers to Atkin § 488, pp. 438, 439.

v. Barwick, supra; Alderson v. Tem2 * The different cases in which ple, 4 Burr. 2235; Harman v. Fisher, buyers have adopted this course, and 1 Cowp. 117, and Salte v. Field, supra. thus kept unimpaired the vendor's In Grout v. Hill (1855), 4 Gray right of stoppage in transitu, are:” (Mass.), 361, it appeared that the Atkin v. Barwick, 1 Str. 165, 10 Mod. buyer, learning of his insolvency be

tinues, " was constantly questioned, and it is now perfectly well settled that, if the insolvent vendee has come into actual possession of the goods, he cannot rescind the contract and return the goods to the vendor, for that would be a clearly fraud

fore the arrival of the goods, gave no with the express understanding that tice to his son that he should not if, on arrival and examination, the receive them, and, making a bill of buyer should find the goods satissale back to the sellers, gave it to his factory he was to accept them. But son for the sellers' use, with a re- here the buyer never accepted them quest that he should immediately and no property in them vested in notify them, which he did. After- him. There was not a rescission or wards, and before an assignee was resale, but simply a refusal to comappointed, one of the sellers came to plete the sale. Compare with Nichthe place of destination and received olson v. Bower, 1 E. & E. 172. the bill of sale from the son and as- In More v. Lott, 13 Nev. 376, goods sented to the buyer's offer to rescind consigned to the buyer arrived by the sale. It was held that the right wagon and were tendered to the of stoppage in this manner was per- buyer, who was insolvent and refused fect. Shaw, C. J., said: “It was very to accept them. The teamster then early held that where the consignee, put the goods into the custody of being a purchaser of goods on credit, one Pierce to be held for the freight finds that he shall not be able to pay charges. Pierce notified the sellers for them, and gives notice thereof to of the facts, but before he heard the vendor, and leaves the goods in from them the goods were attached possession of any person, when they as the property of the buyer. Afterarrive, for the use of the vendor, and wards Pierce, by direction of the the vendor, on such' notice, expressly sellers, claimed the goods for them or tacitly assents to it, it is a good by virtue of their right of stoppage. stoppage in transitu, although the Still later the attaching creditors bankruptcy of the consignee inter- paid the wagoner his freight. It was vene; and the goods revest in the held that the transit had not ended consignor. Atkin v. Barwick, 1 Stra. and that the stoppage was effectual. 165. This was approved and con. To like effect is Greve v. Dunham, firmed in the case of Salte v. Field, 60 Iowa, 108, 14 N. W. R. 130. 5 T. R. 211. The same principle was In Morris v. Shryock, 50 Miss. 590, adopted in this Commonwealth, the statement of facts is very meagre, though the facts led to a different but it appeared that goods had been result, in Lane v. Jackson, 5 Mass. ordered forwarded by boat. They 157." But the court also referred to reached the town of destination and "another ground which, in our opin. were received on the wharf-boat. ion, is still more decisive." It ap- The buyers were insolvent and repeared that the contract of sale was fused to receive the goods and notified executory - an order for goods to the sellers of that fact. While in be subsequently appropriated to the that situation the goods were atcontract by the seller, and forwarded tached at the suit of the buyers'

ulent preference in favor of the vendor." “But even if the property has passed, it may be that the possession is not yet obtained, and the buyer may then honestly reject it without exposing himself to the charge of giving an undue preference to one creditor over the others.”

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creditors. Subsequently the sellers directed them to be returned to the sought to stop the goods in transit, sellers. Immediately afterwards, the and it was held that their right to goods were taken possession of by do so had not been divested.

the sheriff for the assignee. The In Mason v. Wilson, 43 Ark. 172, buyer then wrote the sellers that he certain merchants in Little Rock was insolvent and that the goods had purchased of plaintiff, of St. were subject to their order. The Louis, Mo., a quantity of butter, which sellers took no action other than the was shipped by rail. Before the but- writing of a letter for the return of ter had been delivered to the buyers the goods, which was never received. they suspended business and tele- The sellers then replevied the goods. graphed to the sellers: “Business The court said: Knapp himself suspended. Goods at depot. Tel- carefully avoided taking possession egraph orders to agent.” In the of the goods, and sought to return meantime a local truckman, acting them to the plaintiffs; and had the under previous general orders from plaintiffs ratified his acts before the the buyers. took the goods from the goods were taken possession of by depot to their place of business, but the deputy-sheriff after the assignfinding the store closed, he deposited ment, by the order of the court of the butter in a warehouse, where it probate, for the benefit of Knapp's was attached by the creditors of the creditors, perhaps there might have buyers. Held, that the right of stop- been some ground for the claim that page was not defeated. See also the plaintiffs stopped the goods in Heinz v. Transfer Co., 82 Mo. 233; transitu by the action of their agent; Jenks v. Fulmer, 160 Pa. St. 527, 28 but this they neglected to do. There Atl. R. 841.

appears to have been no effective acA temporary refusal to receive the tion whatever on the part of the goods because of a lack of room or plaintiffs to stop the goods in transitu the inconvenience of placing them before the happening of that event. in the store has no tendency to show and we see no tenable ground for that their transit was not ended. the claim.” O'Neal v. Day, 53 Mo. App. 139.

But in Tufts v. Sylvester, 79 Me. In Millard v. Webster, 54 Conn. 213, 9 Atl. R. 357, 1 Am. St. R. 303, it 415, 8 Atl. R. 470, the buyer, one is held that, where the vendee has Knapp, finding himself insolvent, refused to receive the goods, the made an assignment for the benefit seller's right of stoppage cannot be of creditors. The second day follow- defeated by an acceptance of them ing he declined to take the goods by a “messenger” appointed for the from the railroad station, re-marked insolvent vendee to hold pending them with the sellers’ address, and the appointment of the assignee. A

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