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§ 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.*
§ 1595. Not sheriff.-A mere general creditor, however, has no implied authority to receive for the vendee;" neither has the sheriff or other similar officer by virtue of a writ of attachment or execution sued out by the vendee's creditors.6
§ 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.
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
1 See ante, § 1559.
2 Conyers v. Ennis, 2 Mason (U. S. messenger accepted them and paid
C. C.), 236, 6 Fed. Cas. 377.
the charges. Before an assignee was appointed, the seller gave notice of stoppage, and it was held to be in time.
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.
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,
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
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."
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."
1 Sawyer v. Joslin, 20 Vt. 172, 49 Am. Dec. 768.
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.
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."
In an English case1 it was held "that the vendee (who was assignee under a trust deed) took possession of part of the cargo with the intention of obtaining possession of the whole for the purposes of the trust, and therefore that such taking possession of part did put an end to the transit; but it was fully admitted in that case that the mere delivery of part to the vendee, when he meant to separate that part from the remainder, did not put an end to the right to stop in transitu. If the vendee takes possession of part, not meaning thereby to take possession of the whole, but to separate that part, and to take possession of that part only, it puts an end to the transitus only with respect to that part and no more; the right of lien and the right of stoppage in transitu on the remainder still continue."2
§ 1603. Effect of credit or part payment.-The fact that a term of credit was given for the price of the goods does not defeat the right of stoppage on the buyer's insolvency. Neither does the fact that payment in part has been made affect the right of stoppage for the residue,3 and the seller upon shipping
424, 57 Am. St. R. 919, 33 L. R. A. 351; Ex parte Cooper, 11 Ch. Div. 68; Buckley v. Furniss, 17 Wend. (N. Y.) 504; Secomb v. Nutt, 14 B. Mon. (Ky.) 261; Tanner v. Scovell, 14 M. & W. 28; Dixon v. Yates, 5 B. & Ad. 313; Jones v. Jones. 8 M. & W. 431; McElwee v. Metropolitan Lumber Co., 69 Fed. R. 302, 37 U. S. App. 266, 16 C. C. A. 232.
The fact that part of a lot of logs being driven by a log-driving company drifted into possession of the vendee does not destroy the right of stoppage in transitu as to remainder. Johnson v. Eveleth (1899), 93 Me. 306, 45 Atl. R. 35.
both parties intend it as a delivery of the whole, then it is a delivery of the whole; but if either of the parties does not intend it as a delivery of the whole, if either of them dis sents, then it is not a delivery of the whole. .. I rather think that the onus is upon those who say that it was so intended."
1 Jones v. Jones, supra.
2 Per Pollock, L. C. B., in Tanner v. Scovill, supra.
In Crawshay v. Eades, 1 B. & C. 181, the carrier had begun to unload the goods when he heard of the buyer's insolvency; he thereupon reloaded these goods and returned the whole to his own premises, and it was held that there was no delivery.
3 Howatt v. Davis, 5 Munf. (Va.) 34, 7 Am. Dec. 681.
In Kemp v. Falk, 7 App. Cas. 573, Will. Cas. 405, Lord Blackburn said: "It may very well be that a delivery of a part of the goods is sufficient to afford strong evidence that it is intended as a delivery of the whole. If
the goods is not bound to refund the amount so received as a condition precedent to his right to stop.1
§ 1604. Effect of taking note. Of course, payment in full destroys any occasion for stoppage, and such payment in notes or bills, if accepted as such, will be just as effectual as payment in cash. But, under ordinary circumstances, the tak ing of the bill or note of the purchaser for the price does not constitute payment, and will not defeat the seller's right of stoppage if the buyer becomes insolvent. Neither is it necessary to tender back the bill or note so received on exercising the right; nor is it material that the paper has been negotiated if the seller regains it so as to deliver it when necessary, or, it seems, if he indorsed it on negotiation, even though he has not regained it."
5. How Stoppage May be Effected.
§ 1605. No particular method necessary- Notice to stop. No particular method of exercising the right of stoppage is necessary. The material thing is to notify the carrier, or other person in possession, before delivery, that the seller directs the further transit of the goods to cease. The original impulse which starts the goods upon their journey to the buyer is the act of the seller in consigning the goods to him, and this impulse the seller may terminate by countermanding his original directions.
33, 50 Am. Dec. 754; Newhall v. Vargas, supra; Jenkyns v. Usborne, 7 Man. & Gr. 678, 49 Eng. Com. L.; Edwards v. Brewer, 2 Mees. & Wels 375; Feise v. Wray, 3 East, 93; Lewis v. Mason, 36 Up. Can. Q. B. 590.
4 Hays v. Mouille, 14 Pa. St. 48. 5 Lewis v. Mason, 36 Up. Can. Q. B. 590.
6 See ante, § 1425; McElwee v. Metropolitan Lumber Co., 69 Fed. R. 302, 37 U. S. App. 266, 16 C. C. A. 232.
7 See Mechem's Hutchinson on Car
1 Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; though, of course, the buyer may claim the benefit of the part payment as an extinguishment pro tanto of the price. Newhall v. Vargas, 15 Me. 314, 33 Am. Dec. 617.
2" When goods are purchased and paid for by the order, note or accepted bill of a third party, without the indorsement or guaranty of the purchaser, the vendor has no right of stoppage in transitu." Eaton v. Cook, 32 Vt. 58.
Arnold v. Delano, 4 Cush. (Mass.) riers, § 410.