§ 1572. Interception by seller as a III. SELLER'S RIGHT OF STOPPAGE ON

1584-1587. Deposit of goods in V. THE SELLER'S RIGHT OF RESALE

§ 1470. In general. Although the dealings between the parties may have been such that the title to the goods has passed, still, as has been seen on several occasions, the delivery of the goods by the seller is deemed to be required only upon payment for them, unless the parties have otherwise agreed, and therefore the seller may retain possession until payment is made. This right of the seller grows out of the fact of his previous ownership of the goods, and is in furtherance of the presumed intention of the parties, where no term of credit is given, that the seller shall not part with the possession until the concurrent act of payment is performed.

§ 1471. Precisely what is the nature of the seller's right in these cases, the courts have found it difficult to determine. All agree that the seller has at least a lien, and the right is often spoken of as the seller's lien; but it is clear that it is something more than a mere lien, and, if a lien, it is a lien of an unusual sort and with more than the usual characteristics. Thus, in a somewhat early case,1 the court said that the seller has "not what is commonly called a lien determinable on the loss of possession, but a special interest, sometimes but improperly called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the buyer." And in a later case in Rhode Island, the court said: "The vendor's lien is not a right which he acquires, but a right which he retains, the vendee never having had either possession or right of possession, in default of payment or tender. It is in the nature of an undisposed-of right in and to the property sold to the defaulting vendee." unpaid vendor," says Mr. Benjamin, "with the goods in his possession, has more than a mere lien on them; he has a special property analogous to that of a pawnee."

“An

§ 1472.. Inasmuch, however, as the seller's interest is often spoken of as a lien, and is at least a lien, and because for

1 Dodsley v. Varley, 12 Ad. & El. 632.

2 Arnold v. Carpenter, 16 R. I. 560, 18 Atl. R. 174.

many purposes the right of lien suffices for the protection of the seller, it seems convenient to consider it first as a lien, and to proceed from thence to consider its further characteristics wherein it exceeds a lien,1

I.

THE SELLER'S LIEN.

§ 1473. What here included.— Adopting, therefore, the method referred to in the preceding section, there will be consideration of

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1. The lien in general.

2. Waiver or abandonment of the lien.
3. Estoppel in favor of a sub-purchaser.
4. Revival of lien on buyer's insolvency.
5. Revival of lien on expiration of credit.
6. Effect of a tender of the price.
7. Effect of claiming the lien.

1. Of the Lien in General.

§ 1474. Seller has a lien to secure payment.—As stated in the preceding sections, it is every where conceded that the seller of goods which still remain in his possession, and concerning which no special agreement as to delivery or payment has been made, has, unless he has waived it, a lien upon those goods to enforce the payment of the price, and may, for that purpose, retain possession of them until the price is paid. This right, of course, implies that the title to the goods has passed

1 So in Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. R. 1124. 34 Am. St. R. 531, it is said: "The right of the unpaid vendor with respect to the goods is sometimes called a lien; and it is a lien in the sense that the vendee, upon payment or tender of the price, but not otherwise, may recover them. But it is something more than a mere

common-law lien, which is only a naked right of possession. With the goods in his possession the vendor has a special property in them which is parcel of his original ownership."

For a more detailed examination than is practicable in these pages, see Jones on Liens (ed. 1888), § 800 et seq.

to the vendee, for the seller can have no lien upon goods which still remain his own.1

§ 1475. What the lien secures.-This lien extends only to the purchase price of the goods. "If, by reason of the vendee's default, the goods are kept in warehouse, or other charges are incurred in detaining them, the lien does not extend to such claim, and the vendor's remedy, if any, is personal against the buyer." It does not extend, for example, to dock charges incurred by one who, in order to preserve his lien, has kept in dock a ship he had repaired during the delay of the owner to receive her and pay the repairs; nor to the claim of a railroad company to demurrage for unreasonable detention of cars before unloading.

1 Thus, in Arnold v. Delano, 4 Cush. (Mass.) 33, 50 Am. Dec. 754, Adam's Cases, 7, Shaw, C. J., said: "When goods are sold, and there is no stipulation for credit or time allowed for payment, the vendor has, by the common law, a lien for the price; in other words, he is not bound actually to part with the possession of the goods without being paid for them. The term 'lien' imports that by the contract of sale, and a formal, symbolical or constructive delivery, the property has vested in the vendee; because no man can have a lien on his own goods. The very definition of a lien is, a right to hold goods, the property of another, in security for some debt, duty or other obligation." See also Burke v. Dunn, 117 Mich. 430, 75 N. W. R. 931; Southwestern Freight Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Southwestern Freight Co. v. Plant, 45 Mo. 517; Ware River R. Co. v. Vibbard, 114 Mass. 447; Safford v. McDonough, 120 Mass. 290: Curtin v. Isaacsen, 36 W. Va. 391, 15

3

S. E. R. 171; Robinson v. Morgan, 65
Vt. 37, 25 Atl. R. 899; Crummey v.
Raudenbush, 55 Minn. 426, 56 N. W.
R. 1113.

2 Jones on Liens, § 804; Benjamin on Sales (6th Am. ed.), § 796.

Somes v. Shipping Co., El. BL. & El. 353, 8 H. L. Cas. 338.

4 Mechem's Hutchinson on Carriers, § 478; East Tennessee R. Co. v. Hunt, 15 Lea (Tenn.), 261; Crommelin v. New York & H. R. Co., 4 Keyes (N. Y.), 90.

So, in Putnam v. Glidden, 159 Mass. 47, 38 Am. St. R. 394, 34 N. E. R. 81, it is said: "Where the vendee contends that the property is not his, and treats it as belonging to the vendor, and the vendor elects to keep it for the vendee and sue for the entire contract price, there is no implied contract on the part of the vendee to pay the vendor the expense of keeping it. Whiting v. Sullivan, 7 Mass. 107; Earle v. Coburn, 130 Mass. 596."