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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 notice to his son that he should not receive them, and, making a bill of sale back to the sellers, gave it to his son for the sellers' use, with a request that he should immediately notify them, which he did. After wards, and before an assignee was appointed, one of the sellers came to the place of destination and received the bill of sale from the son and assented to the buyer's offer to rescind the sale. It was held that the right of stoppage in this manner was perfect. Shaw, C. J., said: "It was very early held that where the consignee, being a purchaser of goods on credit, finds that he shall not be able to pay for them, and gives notice thereof to the vendor, and leaves the goods in possession of any person, when they arrive, for the use of the vendor, and the vendor, on such notice, expressly or tacitly assents to it, it is a good stoppage in transitu, although the bankruptcy of the consignee intervene; and the goods revest in the consignor. Atkin v. Barwick, 1 Stra. 165. This was approved and confirmed in the case of Salte v. Field, 5 T. R. 211. The same principle was adopted in this Commonwealth, though the facts led to a different result, in Lane v. Jackson, 5 Mass. 157." But the court also referred to "another ground which, in our opinion, is still more decisive." It appeared that the contract of sale was executory an order for goods to be subsequently appropriated to the contract by the seller, and forwarded
with the express understanding that if, on arrival and examination, the buyer should find the goods satisfactory he was to accept them. But here the buyer never accepted them and no property in them vested in him. There was not a rescission or resale, but simply a refusal to complete the sale. Compare with Nicholson v. Bower, 1 E. & E. 172.
In More v. Lott, 13 Nev. 376, goods consigned to the buyer arrived by wagon and were tendered to the buyer, who was insolvent and refused to accept them. The teamster then put the goods into the custody of one Pierce to be held for the freight charges. Pierce notified the sellers of the facts, but before he heard from them the goods were attached as the property of the buyer. Afterwards Pierce, by direction of the sellers, claimed the goods for them by virtue of their right of stoppage. Still later the attaching creditors paid the wagoner his freight. It was held that the transit had not ended and that the stoppage was effectual. To like effect is Greve v. Dunham, 60 Iowa, 108, 14 N. W. R. 130.
In Morris v. Shryock, 50 Miss. 590, the statement of facts is very meagre, but it appeared that goods had been ordered forwarded by boat. They reached the town of destination and were received on the wharf-boat. The buyers were insolvent and refused to receive the goods and notified the sellers of that fact. While in that situation the goods were attached 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."
creditors. Subsequently the sellers sought to stop the goods in transit, and it was held that their right to do so had not been divested.
In Mason v. Wilson, 43 Ark. 172, certain merchants in Little Rock had purchased of plaintiff, of St. Louis, Mo., a quantity of butter, which was shipped by rail. Before the butter had been delivered to the buyers they suspended business and telegraphed to the sellers: "Business suspended. Goods at depot. Telegraph orders to agent." In the meantime a local truckman, acting under previous general orders from the buyers, took the goods from the depot to their place of business, but, finding the store closed, he deposited the butter in a warehouse, where it was attached by the creditors of the buyers. Held, that the right of stoppage was not defeated. See also Heinz v. Transfer Co., 82 Mo. 233; Jenks v. Fulmer, 160 Pa. St. 527, 28 Atl. R. 841.
A temporary refusal to receive the goods because of a lack of room or the inconvenience of placing them in the store has no tendency to show that their transit was not ended. O'Neal v. Day, 53 Mo. App. 139.
In Millard v. Webster, 54 Conn. 415, 8 Atl. R. 470, the buyer, one Knapp, finding himself insolvent, made an assignment for the benefit of creditors. The second day following he declined to take the goods from the railroad station, re-marked them with the sellers' address, and
directed them to be returned to the sellers. Immediately afterwards, the goods were taken possession of by the sheriff for the assignee. The buyer then wrote the sellers that he was insolvent and that the goods were subject to their order. The sellers took no action other than the writing of a letter for the return of the goods, which was never received. The sellers then replevied the goods. The court said: "Knapp himself carefully avoided taking possession of the goods, and sought to return them to the plaintiffs; and had the plaintiffs ratified his acts before the goods were taken possession of by the deputy-sheriff after the assignment, by the order of the court of probate, for the benefit of Knapp's creditors, perhaps there might have been some ground for the claim that the plaintiffs stopped the goods in transitu by the action of their agent; but this they neglected to do. There appears to have been no effective action whatever on the part of the plaintiffs to stop the goods in transitu before the happening of that event. and we see no tenable ground for the claim."
But in Tufts v. Sylvester, 79 Me. 213, 9 Atl. R. 357, 1 Am. St. R. 303, it is held that, where the vendee has refused to receive the goods, the seller's right of stoppage cannot be defeated by an acceptance of them by a "messenger" appointed for the insolvent vendee to hold pending the appointment of the assignee. A
§ 1593. Who may take possession for vendee - Agent.The vendee may, of course, in person, take that possession of the goods which will terminate their transit and defeat the seller's right of stoppage; and so equally may any agent of the vendee who has a general or special authority for that purpose.'
§ 1594. Administrator Assignee. As the successor to the vendee's rights upon his death, his administrator or executor may take possession, thereby terminating the transit and putting an end to the right of stoppage; and so may his assignee in bankruptcy;3 but not a mere messenger appointed to hold possession until an assignee can be appointed.1
§ 1595. Not sheriff. A mere general creditor, however, has no implied authority to receive for the vendee; 5 neither has the sheriff or other similar officer by virtue of a writ of attachment or execution sued out by the vendee's creditors.R
§ 1596. Or mortgagee.-So, also, a mortgagee in possession of the vendee's goods by virtue of a mortgage expressly giving him a lien upon goods acquired after its execution is
mere general creditor cannot pay the freight and accept the goods, where the vendee has declined to receive them. Greve v. Dunham, 60 Iowa, 108, 14 N. W. R. 130.
1 See ante, § 1559.
2 Conyers v. Ennis, 2 Mason (U. S. C. C.), 236, 6 Fed. Cas. 377.
3 Benjamin on Sale (6th Am. ed.), § 830. The assignee, however, cannot accept if his assignor could not, or make perfect a sale upon conditions which could have been enforced against the assignor. Lentz v. Flint & P. M. Ry. Co., 53 Mich. 444, 19 N. W. R. 138.
4 Tufts v. Sylvester, 79 Me. 213, 9 Atl. R. 357, 1 Am. St. R. 303. In this case, the buyer, becoming insolvent, countermanded the order, but too
late to stop the goods. Before the goods arrived the buyer had gone into insolvency, and a messenger had been appointed. On their arrival, the carrier tendered the goods to the buyer, who refused them, but the messenger accepted them and paid the charges. Before an assignee was appointed, the seller gave notice of stoppage, and it was held to be in time.
5 Greve v. Dunham, 60 Iowa, 108, 14 N. W. R. 130.
6 See ante, § 1572; Greve v. Dunham, supra; More v. Lott, 13 Nev. 376; Morris v. Shryock, 50 Miss. 590; Mason v. Wilson, 43 Ark. 172; Inslee v. Lane, 57 N. H. 454; Harris v. Tenney, 85 Tex. 254, 20 S. W. R. 68, 34 Am. St. R. 796; White v. Hendrie,
without any such implied power to accept for the vendee as will defeat the seller's right of stoppage.'
§ 1597. Actual or constructive possession by purchaser. The transit continues, as has been several times observed, until the goods are reduced to "the actual or constructive possession of the buyer." It was said at one time by Lord Kenyon that the transit is not terminated until the goods have come to the corporal touch" of the purchaser, and the code of Georgia declares that it continues "until the vendee obtains actual possession of the goods;" but the dictum of Lord Kenyon was long ago repudiated by himself and others, and the rule of the Georgia code, as construed by the Georgia courts,3 is not elsewhere observed. On the contrary, it seems now to be generally conceded that something less than corporal touch or actual possession will suffice, and that "something" is termed a "constructive possession." What constitutes such a constructive possession as will terminate the transit has, however, never been defined, and perhaps cannot be, and the case is left to be determined by the light of special instances.
§ 1598. The most common form of this constructive possession is the familiar one, stated by Baron Parke in a leading case, to be, "where the carrier enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination, pursuant to that contract, but in a new character, for the purpose of custody on his account, and subject to some new or further order to be given to him."
§ 1599. This, however, is not the only form of constructive possession which the cases recognize. In a Vermont
38 Mich. 390, and many other cases referred to in preceding sections.
1 Kingman v. Denison, 84 Mich. 608, 48 N. W. R. 26, 22 Am. St. R. 711, 11 L. R. A. 347.
2 See Wright v. Lawes, 4 Esp. 82.
3 See Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. R. 707, 30 Am. St. R. 164.
4 Whitehead v. Anderson, 9 Mees. & Wels. 518.
case1 already cited, for example, it was held that the landing of the goods upon a public wharf where the buyer was in the habit of receiving his goods, the duty and care of the carrier being at an end, and no duty or responsibility being cast upon the wharfinger, was such a constructive delivery as to terminate the transit although the buyer had not taken corporal possession of the goods.
3 1600.. And in a Michigan case, where the seller of logs had failed to deliver them at the place and time agreed upon, and the buyer, without objection from the seller, engaged a booming company to collect and deliver the logs at the designated place, it was held that there was such a constructive delivery as would cut off any further right of stoppage.3
§ 1601. —. But in the English case' already quoted from, Baron Parke further said that it seemed "very doubtful whether an act of marking or taking samples, or the like, without any removal from the possession of the carrier as though done with the intention to take possession, would amount to a constructive possession, unless accompanied with such circumstances as to denote that the carrier was intended to keep, and assented to keep, the goods in the nature of an agent for custody."
§ 1602. Effect of part delivery.— A delivery of a portion of the goods cannot be deemed a delivery of the whole so as to defeat the right of stoppage as to the remainder except where the circumstances show an intention to so regard it.3
1 Sawyer v. Joslin, 20 Vt. 172, 49 Am. Dec. 768.
2 See ante, § 1577.
3 Muskegon Booming Co. v. Underhill, 43 Mich. 629, 5 N. W. R. 1073.
4 Whitehead v. Anderson, supra. Parke, B., further said: "In the case of Foster v. Frampton, 6 B. & C. 107 (13 Eng. Com. L.), it is clear that there were such circumstances; whether in that of Ellis v. Hunt, 3 T. R. 464, is doubtful."
The giving of an order by a consignee of goods to the carrier in whose possession they remain, directing him to deliver them to a third person on payment of freight, does not terminate the transit or put an end to the right of stoppage. Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. R. 424, 57 Am. St. R. 919, 33 L. R. A. 351.
5 See ante, § 1499; Jeffris v. Fitchburg R. Co., 93 Wis. 250, 67 N. W. R.