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Neither is the original transit terminated by delivery from one carrier to another so long as both are actors in the originally contemplated journey.136 But the transit is ended when the original carrier delivers them, even to another carrier, if the delivery is at the buyer's order and was not a part of the transit originally contemplated as necessary to get them to the buyer. The second carrier then holds them as the buyer's representative in possession. Thus, in In re Patterson Co.,137 C ordered goods of B, who in turn ordered them of A. A thereupon shipped them to B, at St. Louis. On their arrival there B reconsigned them to C, in Arkansas. The court held the transit to have ended with B's reconsignment, as the original journey to the buyer was ended in St. Louis, even though the sellers knew they were ultimately to go further on, and had tagged the goods with C's name and address. 188

A fortiori, the transit is not ended through mere delivery of the goods to a warehouseman whose duty is to send the goods still further on their journey. And this is so even though the orders as to the rest of the journey are to come from the buyer himself. Although it does not expressly appear in the cases, a distinction would undoubtedly be made if the parties had not clearly contemplated the place of the further journey at the time of shipment. That is to say, the holdings that a warehouseman in whose care goods have been consigned is not a possessory agent of the buyer seem to be founded on the fact that at the time of consignment it was contemplated that they had still to go to some definite place before reaching the buyer, although the buyer was to direct their getting there. Thus, where goods were consigned to the buyer at Malone, in care of a warehouseman at Plattsburg, it was obvious that a journey beyond Plattsburg was contemplated, even though the means of getting them from Plattsburg to Malone was left to the buyer's arrangement. In that case it was held that the goods had not come to the end of their transit in the warehouseman's hands.189

136—White v. Mitchell, 38 Mich. 390, delivery by carrier to a carter; Re Burke & Co., 140 Fed. 971, idem; Bethell v. Clark, 20 Q. B. Div. 615.

137–186 Fed. 629.

138_Cf. Muskegon Booming Co. v. Underhill, 43 Mich. 629; Brooke Iron Co. v. O'Brien, 135 Mass. 444; Norfolk Co. v. N. Y., N. H. & H. R., 202 Mass. 160.

But in Bravan v. Atlanta, etc,

R. R. Co., 108 Ga. 70, 79 Am. St. 26, a sub-buyer laid his hands on the goods while in the freight house at their original destination and ordered them sent to his own buyer; yet the original seller was allowed to retake possession. In Lewis v. Sharvey, 58 Minn. 464, a mere order from the buyer to the carrier to deliver to another person in the same place was held not to terminate the transit,

Delivery by the carrier, even to a recipient who has nothing to do with the transportation, does not end the transit if the recipient does not in any way represent the buyer, as agent or otherwise.140 But the right is lost if the recipient represents the buyer, as, for instance, the administrator of a deceased buyer's estate.141

To recapitulate, the fact that the goods are or are not in motion seems to have no effect in determining whether or not they are in transit. Neither does the character of the person in possession-i. e., his character as a transporter, a forwarder, or a warehouseman-have any


method of getting to original one; Bethell v. Clark, 20 Q. B. Div. 615.

139-Buckley v. Furnigs, Wend. (N. Y.) 137; Blackman v. Pierce, 23 Cal. 508; Hepp v. Glover, 15 La. 461; Hause v. Judson, 4 Dana (Ky.) 7; Chandler v. Ful. ton, 10 Tex. 2, buyer's instructions to intermediary to "hold onto the goods until he should order them away" held not to end transit. Frame v. Oregon Liquor Co., 48 Ore. 272, goods in hands of a teamster ordered by buyer to get them from the freight depot to which they had been consigned held still in transit. This case goes further than others. Hays v. Mouille & Co., 14 Pa. 48; Cablen v. Campbell, 30 Pa. 255, distinction between new destination and

140—Kingman & Co. v. Deni. son, 84 Mich. 608, 11 L. R. A. 347, delivery to mortgagees of the buy. er who had taken possession of his store.

But an assignee or trustee in bankruptcy does represent the buyer, Re Arctic Stores, 258 Fed. 688; McElroy v. Seery, 61 Md. 389; Cf., however, Tufts v. Sylvester, 79 Me. 213, holding a "bankruptcy messenger" not to represent the buyer.

141-Jacobs v. Bentley, 86 Ark. 186; Conyers v. Ennis, 2 Mason 236.

apparent effect on the decision. The one really indicative circumstance that can be deduced from the cases is the contract relation through which the holder of the goods is in possession. If his possession is one of contract, directly or indirectly, with the seller it indicates that he holds as a link in the transit. If his possession is under a contract with the buyer, it strongly indicates that the buyer, has received possession—through his agent—and the transit is at an end.

If the goods are not consigned to the buyer at all, but to a buyer from him, to whom he has ordered them shipped, they would nevertheless seem technically to be in transit, so far as the right of stoppage is concerned, until they reach the possession of the person to whom they are consigned. This case occurs when the buyer gives instructions for the seller to make delivery to some third person instead of to the buyer himself. In such case the third person would seem to stand in place of the buyer, and the goods to be in transit until they have come into the possession of such representative of the buyer. Thus, if the original buyer has resold and thereafter directs the seller to ship to his buyer, the transit is between the original seller and the second buyer; but until the goods have reached the sub-buyer it can not be said that they have come into the hands of either the buyer or of any possessory agent of his. They are, therefore, logically still in transit.148 The decided cases, however, are against this position, and hold that the right of stoppage does not exist after shipment to the sub-buyer. 148

142–Compare Ex parte Golding, directly to the sub-buyer. In the 13 Ch. Div. 628.

former case, there is no doubt, 143—There are two ways in from the authorities already cited, which the case might arise:-the but that the goods would be subbuyer might order the goods sent ject to stoppage any time before to some agent or representa they reached the consignee named. tive of his, instead of to him. Such a transit is truly one beself; or the buyer, having resold tween the seller and buyer as the goods, might order them sent represented by his agent. But in

-Termination of Transit of Part of the Goods.-Delivery to the buyer, or his possessory agent, of a part of the goods does not necessarily put an end to the transit of the rest of a single shipment. If, however, the delivery of the part is of symbolic import from which can be implied a new contract under which the carrier holds the rest no longer as carrier for the seller, but as possessory agent-even though still a carrier—of the buyer, then the transit is at an end because the goods are in the actual possession of the buyer through the possession of his agent for that purpose. 144

Transit as Affected by Acts of Outsiders. The fact that the goods have been taken from the actual possession of the carrier, by some one other than the buyer or his agent, does not terminate the transit. The most usual case of this is the attachment by creditors of the buyer of goods still in the carrier's hands, and the consequent taking possession of them by the sheriff or other legal officer. It is uniformly held that such attachment and change of possession does not defeat the seller's right to retake in case of the buyer's insolvency. It makes

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the second case there is doubt. The spirit of the rule certainly justifies stoppage in such a case. The goods are just as logically in transit from seller to buyer when the consignee is one to whom the buyer has sold them as when the consignee is one whom the buyer has authorized otherwise to represent him. There is no question involved of the equity of such subbuyer, because the courts have consistently held that one who buys from a buyer not in possession even of a bill of lading gets no equity that will defeat the original seller's right to stop in transit. The question is, therefore, solely one of the transit. Logically, since the goods sent by the

seller have not reached the pos. session of anyone, other than the carrier, they must still be in transit to the buyer or his representative. The authority is scanty, but what exists holds that the right to stop does not exist in such cases. The theory of the decisions is not clear. Neimeyer v. Burlington, etc. R. R., 54 Neb. 321; Shepard v. Burroughs, 62 N. J. L. 469; Eaton v. Cook, 32 Vt. 58; Memphis etc. R. R. Co. v. Freed, 38 Ark. 614; Treadwell Aydlett, 9 Heisk. (Tenn.) 388.

144-Buckley Furniss, 15 Wend. (N. Y.) 137; Tanner v. Scovell, 14 M. & W. 28; Ex parte Falk, 14 Ch. Div. 446; 7 App. Ca. 573.



no difference at what time the debts of the attaching creditors accrued—unless they were misled by a bill of lading in the buyer's hands, a matter which is discussed hereafter.145 If before the seller acts, the goods have been sold under the attachment proceedings, the right of the seller still attaches to the money in the hands of the court.146

If the seller himself takes the goods on attachment against the buyer the result is not certain. It is said that by so doing he does not preclude a stoppage, since stoppage does not affect the buyer's title and is not inconsistent with attaching them as the buyer's goods.147 The stoppage in transitu does, however, revest the seller with his lien, and it might well be said that attachment is inconsistent with a lien.148

If, however, the goods should be taken from the carrier by the buyer himself, or his representative, the transit would have come to an end even though the destination originally intended had not been reached. 149

Carrier's Lien.—The seller's right to possession is subordinate to the carrier's lien for freight on the particular shipment, although superior to a carrier's general lien for other freight.160 In this connection, an unusual

145—Post, p. 221.

146-O'Brien y. Norris, 16 Md. 122; Blum & Co. v. Marks, 21 La. An. 268; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496; Hepp v. Glover, 15 La, 461; Hause v. Judson, 4 Dana (Ky.) 7, attaches to money made by sale; Smith V. Goss, 1 Camp. 282; Calahan v. Babcock, 21 O. S. 281; Frame v. Oregon Liquor Co., 48 Ore. 272, unaffected by sale of goods under attachment proceedings; Hays v. Mouille & Co., 14 Pa. 48; White v. Mitchell, 38 Mich. 390.

But cf. Couture v. McKay, 6 Manitoba L. R. 273.

147-Allyn v. Willis, 65 Tex. 65;

But compare Fox v. Willis, 60 Tex. 373; Woodruff v. Noyes, 15 Conn. 335.

148—See ante, p. 120.

149—Hays v. Mouille & Co., 14 Pa. 48; Walsh v. Blakely, 6 Mont. 194; Cabeen v. Campbell, 30 Pa. 254; Halff v. Allyn, 60 Tex. 278; Mecham' & Son v. N. E. R. R. Co., 48 Scot. L. R. 987, applying statute; Whitehead v. Anderson, 9 M. & W. 518.

150-Rucker V. Donovan, 13 Kan. 251; Farrell v. Richmond, etc. R. R., 102 N. C. 390, 3 L. R. A. 647, general lien; U. S. Steel Co. v. Great Western Rr., L. R. 1 A. C. 189, general lien.

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