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. 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 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. 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 taking 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. 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. 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 Arnold v. Delano, 4 Cush. (Mass.) riers, § 410. The right of stoppage, as has been seen, is favored in the law; so much so that Lord Hardwicke, on one occasion, said that the seller might resort to any means, not criminal, to regain possession of his goods. § 1606.. The usual and appropriate way is to serve upon the carrier a written notice describing the goods, directing their stoppage, and specifying the ground upon which the right to stop is based. But though reasonable description is necessary,1 it is not indispensable that the notice state the reason,2 or be in any particular form, or make use of any particular language. A demand upon the carrier for the goods, a notice to him to stop delivery, an assertion by the seller of his right to them and an endeavor to get them, shows sufficiently his purpose and is effectual to preserve the seller's right.3 § 1607. The seller is not bound to prove to the carrier the existence of the right he claims. "The carrier," said the court in a recent case, "is not the tribunal to determine the rights of the consignor and consignee. Neither of these parties can be required to plead or make proof before the carrier. No man need prove his case to his adversary. It is sufficient if he prove it to the court. It is reasonable, however, that the person assuming the right to stop goods in transit should. act in good faith toward the carrier. He should, if requested, furnish him, in due time, with reasonable evidence of the validity of his claim, though it may not amount to proof. Should the consignor refuse such reasonable information as he may possess, such refusal might be construed as a waiver of his 1 Clementson v. Grand Trunk Ry. Co., 42 Up. Can. Q. B. 263, cited in Allen v. Maine Cent. R. Co., post. 2 Allen v. Maine Cent. R. Co., 79 Me. 327, 9 Atl. R. 895, 1 Am. St. R. 310, and valuable note. 3 Allen v. Maine Cent. R. Co., supra; Rucker v. Donovan, 13 Kan. 251, 19 Am. R. 84; Jones v. Earl, 37 Cal. 630; Reynolds v. Boston, etc. R. Co.. 43 peculiar right, and might justify the carrier, after a reasonable time, in no longer detaining the goods from the consignee.” § 1608. To whom notice to stop should be given — Vendee. The notice to stop the goods must obviously be given to the middleman having them in his possession at the time for the purposes of the transportation.1 Notice, therefore, to the vendee himself not to take possession of the goods, or a demand upon him to surrender them, is clearly insufficient." 3 § 1609. Carrier's agent.- Where the goods are in the possession of a servant or agent of the carrier, the notice, to be effective as a stoppage of the goods, must, as stated in the leading case upon the subject, "be given to the person who has the immediate custody of the goods; or if given to the principal, whose servant has the custody, it must be given at such a time, and under such circumstances, that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee. To hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servants to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery." § 1610. Carrier's lien must be satisfied. Upon exercising his right of stoppage the seller must satisfy the charges of the carrier in connection with that particular shipment, and for 'Mechem's Hutchinson on Carriers, § 412. 2 See note to Allen v. Maine Cent. R. Co., 1 Am. St. R. 312; Mottram v. Heyer, 5 Denio (N. Y.), 629; Rucker v. Donovan, 13 Kan. 251, 19 Am. R. 84, citing Whitehead v. Anderson, 9 Mees. & Wels. 518. 3 Per Parke, B., in Whitehead v. Anderson, 9 Mees. & Wels. 518. In Poole v. Houston & T. C. Ry. Co. (1882), 58 Tex. 134, it is said by Watts, J., that notice of stoppage given to the station agent at the point of des tination, although the goods had not yet reached that place, was sufficient, as he could telegraph notice to the proper agents along the line; but this was doubted by Bonner, J. those charges the carrier's lien is superior to the seller's right.1 But here the carrier's preference ceases, and the seller's right of stoppage is "paramount to any lien, created by usage or by agreement between the carrier and the consignee, for a general balance of account.' 992 6. Legal Effect of Stopping the Goods. § 1611. Restores seller's right of possession. The effect of the exercise by the seller of his right of stoppage in transitu is to restore to him his right of possession as it existed when the goods were shipped. If, after proper notice to stop, the carrier delivers the goods to the buyer or one claiming under him, the carrier will be liable to the seller for their value.* So if, after proper notice to stop, the carrier, or other person having the custody of the goods, refuses to restore them to the seller in accordance with his right, the latter may maintain replevin for them, or may recover their value as for a conversion.5 The effect of the exer § 1612. Does not rescind the sale. cise of the right of stoppage, as it seems now to be generally agreed, is not to rescind the sale, but, as was seen in the preceding section, to restore the seller to his right of possession and lien. Upon being restored to his possession, the seller's 1 Potts v. New York, etc. R. Co., 131 Mass. 455, 41 Am. R. 247; Pennsylvania R. Co. v. American Oil Works, 126 Pa. St. 485, 17 Atl. R. 671, 12 Am. St. R. 885; Hays v. Mouille, 14 Pa. St. 48. 2 Potts v. Railroad Co., supra (citing Oppenheim v. Russell, 3 Bos. & Pul. 42; Jackson v. Nichol, 5 Bing. N. C. 508, 518). 3 Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. R. 1124, 34 Am. St. R. 531, Burdick's Cases, 617. 4 Litt v. Cowley, 7 Taunt. 169; Ascher v. Grand Trunk R. Co., 36 U. C. Q. B. 609; Jones v. Earl, 37 Cal. 630. 5 See Mechem's Hutchinson on Carriers, § 420; The Tigress, 32 L. Jour. Adm. 97. 6 Sheppard v. Newhall, 7 U. S. App. 544, 4 C. C. A. 352, 54 Fed. R. 306: Cross v. O'Donnell, 44 N. Y. 661, 4 Am. R. 721; Rucker v. Donovan, 13 Kan. 251, 19 Am. R. 84. See also, for example, the discussion, per Church, C. J., in Babcock v. Bonnell, 80 N. Y. 244, where, though he contends that the theory of rescission is more simple and more just, he yet admits that "the decisions in this country are quite preponderating in favor of the theory of a lien.” [Citing Rowley v. Bigelow, 12 Pick. |
