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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, it is not indispensable that the notice state the reason, 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.”

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$ 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,4 “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. Reynolds v. Boston, etc. R. Co., 43 Co., 42 Up. Can. Q. B. 263, cited in N. H. 580; Newhall v. Vargas, 13 Me. Allen v. Maine Cent. R. Co., post. 93, 29 Am. Dec. 489; Atkins v. Colby,

2 Allen v. Maine Cent. R. Co., 79 20 N. H. 154; Stanton v. Eager, 16 Me. 327, 9 Atl. R. 895, 1 Am. St. R. 310, Pick. (Mass.) 467; Bloomingdale v. and valuable note.

Memphis, etc. Ry. Co., 6 Lea (Tenn.), - 3 Allen v. Maine Cent. R. Co., supra; 616: Litt v. Cowley, 7 Taunt. 169. Rucker v. Donovan, 13 Kan. 251, 19 4 Allen V. Maine Central R. Co., Am. R. 84; Jones v. Earl, 37 Cal. 630; supra.

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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. Notice, therefore, to the vendee himself not to take possession of the goods, or a demand upon him to surrender them, is clearly insufficient.?

$ 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 cases 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

I Mechem's Hutchinson on Carriers, Poole v. Houston & T. C. Ry. Co. $ 412.

(1882), 58 Tex. 134, it is said by Watts, 2 See note to Allen v. Maine Cent. J., that notice of stoppage given to R. Co., 1 Am. St. R. 312; Mottram v. the station agent at the point of des. Heyer, 5 Denio (N. Y.), 629; Rucker tination, although the goods had not v. Donovan, 13 Kan. 251, 19 Am. R. yet reached that place, was sufficient, 84, citing Whitehead v. Anderson, 9 as he could telegraph notice to the Mees. & Wels. 518.

proper agents along the line; but this 3 Per Parke, B., in Whitehead v. was doubted by Bonner, J. Anderson, 9 Mees. & Wels. 518. In

those charges the carrier's lien is superior to the seller's right." 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.'

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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."

§ 1612. Does not rescind the sale.— The effect of the exercise 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 5 See Mechem's Hutchinson on CarMass. 455, 41 Am. R. 247; Pennsyl- riers, $ 420; The Tigress, 32 L. Jour. vania R. Co. v. American Oil Works, Adm. 97. 126 Pa. St. 485, 17 Atl. R. 671, 12 Am. 6 Sheppard v. Newhall, 7 U. S. App. St. R. 885; Hays v. Mouille, 14 Pa. 544, 4 C. C. A. 352, 54 Fed. R. 306: St. 48.

Cross v. O'Donnell, 44 N. Y. 661, 4 2 Potts v. Railroad Co., supra (cit- Am. R. 721; Rucker v. Donovan, 13 ing Oppenheim v. Russell, 3 Bos. & Kan. 251, 19 Am. R. 84. See also, Pul. 42; Jackson v. Nichol, 5 Bing for example, the discussion, per N. C. 508, 518).

Church, C. J., in Babcock v. Bonnell, 3 Diem v. Koblitz, 49 Ohio St. 41, 2980 N. Y. 244, where, though he conN. E. R. 1124, 34 Am. St. R. 531, Bur- tends that the theory of rescission dick's Cases, 617.

is more simple and more just, he yet 4 Litt v. Cowley, 7 Taunt. 169; admits that "the decisions in this Ascher v. Grand Trunk R. Co., 36 country are quite preponderating in U. C. Q. B. 609; Jones v. Earl, 37 Cal. favor of the theory of a lien.” [Cit630.

ing Rowley v. Bigelow, 12 Pick.

lien revives, and the assertion of the lien, as has been already seen,' does not of itself effect a rescission of the sale. The goods still remain the goods of the buyer until the seller has in some way foreclosed his right; and until that time the buyer may redeem them.?

$ 1613. Remedy of seller to secure payment. The remedy of the seller who has regained possession and revived his lien by stopping the goods in transit is that which has been already referred to in connection with the lien, namely, a sale of the goods in execution of his lien. The fuller treatment of the subject of sale for this purpose will be found in subdivision V.

III.

SELLER'S RIGHT OF STOPPAGE ON EXECUTORY SALE.

$ 1614. Nature of this right.- As has been already noticed, the right of stoppage in transitu, strictly so called, exists only where the title to the goods has passed to the buyer, and is therefore a right exercised by the seller upon the goods of the purchaser. But, as has also been observed, a right in many respects analogous to this, and one in fact often confused with it, exists where the sale was simply executory and where the goods, still belonging to the seller, are going forward to the buyer under an arrangement, express or implied, that the title shall or does not pass until they reach their destination, or until their approval by the purchaser, or until some other precedent condition has been performed.'

$ 1615. — In such a case the seller may stop his own goods while in transit at any time. He may do so of his mere whim and without reason, subject of course to the buyer's

(Mass.) 307, 23 Am. Dec. 607; Stan- Conn. 53; Jordan v. James, 5 Ohio, 88; ton v. Eager, 16 id. 467; Arnold v. Harris v. Pratt, 17 N. Y. 249.] Delano, 4 Cush. (Mass.) 33, 50 Am. 1 See ante, & 1523. Dec. 754; Newhall v. Vargas, 13 Me. 2 See post, S 1628. 93, 29 Am. Dec. 489; 15 Me. 314, 33 3 Pattison v. Culton (1870), 83 Ind. Am. Dec. 617; Rogers v. Thomas, 20 240, 5 Am. R. 199.

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claim for damages for the non-performance of the contract; and clearly, if the buyer be found insolvent, the seller may properly stop in transit goods which have not been paid for, upon the general ground that he is not obliged to deliver the goods without payment to an insolvent buyer, and because it is an implied condition that the buyer upon credit shall keep bis credit good.'

$ 1616. Moreover, if at some stage in the transit before actual delivery the title to the goods should change and vest in the buyer, the seller's right of stoppage, strictly so called, would doubtless then arise, if thereafter, and before the termination of the transit, the buyer should be found insolvent.

$ 1617. How right exercised - Its effect. This form of the right of stoppage may be exercised by any of the methods which would suffice in case the title had already passed. Its effect, however, would be to restore to the seller the possession of his own goods and to give him the same personal remedies against the defaulting buyer which exist in any case of the breach of an executory contract — remedies which are considered in later sections.

IV.

OPTION OF SELLER AS TO REMEDIES.

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$1618. What remedies the seller may pursue.-—"The vendor of personal property,” it was said in a leading case, “in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) Ho may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) He may keep the property as his own, and recover the difference between

3 Dustan v. McAndrew, 44 N. Y. 72.

1 Pattison v. Culton, supra. 2 See post, § 1672.

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