Buckley vs. Furniss & Stickney, 15 Wend. 137

By the Court, Bronson, J. The vendor, in the case of a sale on credit, may resume the possession of the goods while they are in the hands of a carrier or middle-man, in their transit to the consignee or vendee, on his becoming bankrupt or insolvent. In this case the goods had neither reached their ■ destination, nor had they come to the actual possession of t¡lg ven¿ee. They were in the hands of a carrier or middleman, on their way to the vendee, and the plaintiff had a right to stop them, unless there be something in this case to take it out of the operation of the general rule.

It was urged, on the argument, that nearly forty days had elapsed between the sale and the stoppage of the goods. But I am not aware that it has ever been held, that the mere lapse of time was a circumstance of any importance, in determining the right of the vendor to resume possession of the goods, provided the right be exercised before the transitus is at an end. As between the vendor and vendee, no reason is perceived why this consideration should be permitted to affect the question. Mere delay on the part of the seller could neither deprive him of his right, nor confer a superior equity on the purchaser.

But without attempting to decide what might be the effect of delay under circumstances that may possibly arise, it is sufficient, in this case, to say that there is no evidence going to establish the fact, that the plaintiff did not exercise the right of stopping the goods as soon as he could do so, after learning that the purchaser was insolvent. At what particular time he ascertained that fact does not appear, but I infer, from the evidence, that it must have been as late as the tenth or fifteenth day of September. The witness, James H.

Titus, of New-York, testified that he was at the works, (in Malone) and left there on the sixth of September; that he saw the plaintiff in New-York, before he replevied the iron, and told him Henry had no interest there, (at Malone,) and advised him to go and get the iron back. If this conversation was after the witness returned to New>York, there was no great delay on the part of the plaintiff in resuming possession of the property after he learned that the purchaser was a bankrupt.

Another ground taken by the defendant’s counsel is, that the plaintiff sold the goods with a full knowledge of the situation of Titus, and that the sale was consequently absolute. The sale was no doubt absolute, whether the plaintiff knew that Titus was insolvent or not; and so are most sales, where the vendor afterwards exercises the right of stoppage in transitu.

The right of the vendor to resume the possession of goods sold on credit, in case of the insolvency of the consignee, before they come to his hands, does not depend upon any condition, or other peculiarity in the contract of sale, but proceeds on the ground of an equitable lien. Still, it may be, and probably is true, that if the plaintiff sold the iron, with a full knowledge of the situation of the vendee, he could not afterwards exercise the right of stoppage in transitu; but the argument is not borne out by the facts of the case.

The plaintiff knew Titus when he failed in New-York in 1829, but it does not appear that he knew that he had ever since remained insolvent. On the contrary, he found him subsequently engaged in business at Malone, and representing that he was largely interested in real estate. The plaintiff had before sold goods to Titus, and been promptly paid ; and there was no evidence that at the time of the sale of the iron in question, he knew that Titus was largely indebted, on account of his business at Malone, or that his notes and drafts had been protested in New-York, Troy, and other places, as was the fact.

The truth, no doubt, is, that the plaintiff was deceived by the false representations of Titus, and the credit was fraudulently obtained. There is, then, nothing in this branch of the argument which militates against the right of the plaintiff to retake the. goods. If the defendants intended to rely on the attachment, they should have given it in evidence on the trial. Jenner v. Joliffe, 6 Johns. R. 9. But if the attachment had been duly proved, it would not have constituted a good defence. The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus had himself.

He might, by legal process, acquire a priority over other creditors, who were less diligent, and thus secure his debt; but he could not divest a right already existing in the plaintiff. The process does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself.

If the levy of an execution, or the service of an attachment against the vendee, were allowed to defeat the claim of the vendor, the right of stoppage in transitu would be of little value; for in this state, judgments and attachments not unfrequently furnish the first public evidence of the insolvency of a trader. In Oppenheim v. Russell, 3 Bos. & Pul. 42, the carrier attempted to set up a lien for a general balance of account against the consignee, to defeat the right of the consignors to stop the goods ; but the defence was overruled. Lord Alvanley, Ch.

J., in delivering the opinion of the court, says, “ it was admitted that if the consignee had made an assignment of the goods, his assignee could not have defeated the rights of the consignor.” And he adds, that the consignor can resume possession of the goods “ without satisfying any rights derived under the consignee, if he claim to resume them before they come into that situation which gives the consignee a complete dominion over them.” Chambre, J., notices an argument which had been urged by the defendants’ counsel, that a creditor of the consignee might have taken the goods in execution on their passage, but he gives no opinion on the point.

That precise question was decided in favor of the consignor soon afterwards, in the case of Smith and another v. Goss, 1 Campb. N. P. Rep. 282. The goods, while on their passage, had been attached by process out of the mayor’s court of London, at the suit of a creditor of the vendee. Lord Ellenborough held, that “ the vendor’s power of intercepting the goods was the elder and preferable lien, and was not superseded by the attachment.” This seems to have been regarded as the settled law on this question ever since. 2 Kent’s Comm. 541,2, 547, 550.

The point was decided by this court at January term, 1833, in the case of Le Ray De Chaumont v. Griffin, which has not been reported. In that case the plaintiff owned a furnace at Carthage, in the county of Jefferson, where he manufactured pig and scrap iron. He sold a quantity of iron to Walbridge & Co. who were merchants at Syracuse, on credit, to be forwarded by the way of Sacket’s Harbor and Oswego to the purchasers at Syracuse.

After the iron reached Sacket’s Harbor, and while it remained in the hands of one Butterfield, a forwarding merchant at that place, an execution against the vendees at the suit of certain creditors, was levied upon the property. After the levy, the plaintiff, learning that the vendees had become insolvent, directed Butterfield to retain the property. The sheriff, disregarding the plaintiff’s claim, proceeded on the execution, and sold the iron to the defendant, who purchased for the judgment creditors. The plaintiffs’ agent attended, and forbade the sale.

The defendant, after the sale, took the iron and carried it away, and the plaintiff brought an action to recover the value. The judge charged the jury, that the levy of the execution did not destroy the plaintiffs’ right to stop the goods, and the jury found a verdict for the plaintiff, for $952,21, the value of the iron.

After argument, this court held that the defendant, and the judgment creditors whom he represented, had no better right to the iron than the purchasers had themselves, and that the plaintiff clearly had the right to stop the goods, notwithstanding the levy ; and judgment was rendered in his favor on the verdict. If there had been a sale on the execution, and a bona fide purchaser had parted with his money before the vendor asserted his right; or if the vendor had done any act which might have misled third persons, that would have given rise to a different question. Hunn v. Bowne, 2Caines,38. Davis v.

Reynolds, 4 Campb. N. P. R. 267. Buffington v. Gerrish, 15 Mass. Rep. 156. Another point made on the part of the defendants is, that there was an unconditional delivery of the goods, and that the vendor could not afterwards exercise the right of stopping them in transitu. It may be conceded that the title to the goods passed to the vendee, when they were forwarded pursuant to his order ; that the delivery to the carrier was for most purposes a delivery to the purchaser, and the loss of the property if it had been sunk or destroyed, would have fallen on him.

Still it was only a constructive, not an actual delivery to the vendee ; and such interest as he had in them was subject to be defeated, in case of his insolvency, by the exercise of the vendor’s right to stop the goods before they came to the actual possession of the purchaser. Ellis v. Hunt, 3 Durn. & East, 468, per Buller, J. Stokes v.LaRiviere, and Hunter v.Beal, before Lord Mansfield, cited 3 Durn.& East, 466.

There are cases where the delivery of the goods to a third person for safe custody, for disposal on the pari of the vendee, or to await his orders as to the place of destination, has been held equivalent to an actual delivery to the vendee, and that the vendor’s right to stop the goods was consequently determined. But where the delivery to a carrier or other agent is for the mere purpose of conveyance to.the purchaser, the right of jhe vendor to stop the goods continues until they come to the actual possession of the vendee, or reach the end of their journey.

It is believed that no case to the contrary can be found. Indeed a different doctrine would completely overturn the right of the vendor to stop the goods in almost every case that can be supposed. But the ground on which the defendant’s counsel seemed principally to rely, was, that thetransitus of the goods was'at an end when they reached Green’s warehouse at Plattsburgh. The order for the iron did not specify the mode in which it was to be forwarded, but it seems to have been understood that the plaintiff was to follow the directions contained in the previous order for a quantity of steel.

The iron was accordingly marked, and directed to Titus at Malone, to the care of Thomas Green, Plattsburgh, and delivered to the carrier. The mode of transportation was, from Troy to Whitehall by the canal, from thence to Plattsburgh by vessels on Lake Champlain, and from that place to the residence of the plaintiff t'he transportation was over land. Plattsburgh was only one of the stages, not the terminus of the journey ; and Green was as much a middle man between the vendor and the vendee as was the master of the canal boat at Troy, or the captain of the sloop Napoleon on lake Champlain.

The warehouse-man was not the agent of Titus for any other purpose than that of storing the goods, and the goods only rested at that place for the' purpose of changing the mode of transportation. They were not to remain at Plattsburgh until the vendee should put them in motion in a new direction; their ultimate destination had already been fixed by the vendee, and that destination they had not reached. The transitus was > therefore not at an end,, and in such a case the vendor clearly had the right to resume possession of the goods. Coates v. Railton, 6 Barn.& Cress. 422. Hodgson v. Loy, 7 T. R. 435.

The cases cited for the defendants are plainly distinguishable from the one before the court. Dixon v. Baldwin, 5 East, 186, was decided on the ground that “ the goods had so far gotten to the end of their journey, that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and that without such orders they would continue stationary. In Rowe v. Pickford, 8Taunton, 83, the goods had reached their final place of delivery. In Leeds v.

Wright, 3 Bos. & Pul. 320, the agent who ordered the goods had a general authority to send them to his principals in Paris, or to Holland, Germany, or such other market as he might deem most beneficial. The goods having been delivered to a packer in London, pursuant to the direction of the agent, it was held that the transitus was at an end. In Coates v.

Railton, already cited, Bayley, J. reviews several of the cases, and concludes by saying, “ the principle to be deduced from these cases is, that the transitus is not at an end until the goods have reached the place named by the buyer to the seller, as the place of their destination.” As a general rule, this remark is no doubt well founded. In the case under consideration, the place of destination named by Titus, the purchaser, was not Plattsburgh but Malone ; and Green sustained no other character than that of middle-man between the parties.

The nonsuit must be set aside, and a new trial granted ; costs to abide the event of the suit.