A. B. Symns & Co. v. Wm. Schotten & Co.
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Opinion of the Court
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The opinion of the court was delivered by Johnston, J.:
i. stoppage in transitu. *314 2 implication-goods m transit,
*313 The only question to be decided in this case is, whether Win. Schotten & Co., who interpleaded in the action, had a right, under the facts, to reclaim the goods which they had sold to the Emporia Mercantile Association. It is agreed that the goods were sold on credit, and that after the sale and before their arrival at the point of destination the consignee became insolvent. The right of the vendors to repossess themselves of the goods at any time while they were on the road and prior to their arrival at Emporia is conceded. But it is claimed that because the goods had reached the point to which they were shipped, and had been unloaded from the cars and placed in the wai’ehouse of the railroad company, the transitus was at an end, and the vendors’ right of stoppage was extinguished. The right of stoppage in transitu is not so limited an one as the plaintiffs would make it. It is one which the law favors, and is said to be founded upon the just principle that one man’s property shall not be applied in payment of another man’s debts, and the courts have been inclined to encourage rather than to réstrict the exercise of the right. The general rule is that the vendor may resume possession of the goods at any time before they actually reach the possession of the vendee. This rightuóntinues in the vendor not only while the goods are be-' ing carried to the place of consignment, but may be exercised at any time until the delivery to the vendee or his agent has been completed. The unloading of the goods and the placing of them in the warehouse of the railroad company does not *314 necessarily terminate.the transitas, nor put an.end to the right of stoppage; so long as they remain in.the hands of the carrier or middlemen as such, the right does not cease. There may be cases where the possession of the carrier or warehouseman, after the final destination is reached, will, owing to the agreement of the parties, or the special circumstances of the case, be regarded as the possession of the vendee, and so put an end to the vendor’s right of stoppage. But where goods are consigned and shipped in the ordinary way, and the railroad company which brings them to the point of delivery, in performance of its duty as carrier, unloads and places the goods in its warehouse awaiting the payment of fpgjg^ charges before delivery to the vendee, the presumption will be that the goods are still in transit, and that the right of stoppage yet remains in the vendor.
In an Ohio case quite analogous to the one at bar, certain goods that had been consigned and shipped in the usual way, were transferred by the railroad company to its warehouse at the station to which the goods were. consigned, and near to which the vendee resided and did business, there to await the payment by him of the charges thereon as a.condition precedent to their removal and delivery at his business house, and it was held that the transfer did not ipso facto constitute a delivery of possession to the vendee, but was to be regarded as a reasonable exercise of the duty by the carrier in the course of their transit, and as connected with the original employment of the company as agent of the vendor to transport and deliver, and therefore did not preclude the vendor’s right of stoppage in transitu. It was recognized that in some instances the carrier or middleman might become the agent of the vendee and hold possession for the vendee, but it was said that such “agency will not be implied from the carrier’s original employment, and can arise only by showing affirmatively some arrangement or understanding to that effect other than the general words of an ordinary consignment.” ( Calahan v. Babcock, 21 Ohio St. 281 .)
There is.no conflicting authority upon the question presented here, and no necessity for a review of the decided cases. Among *315 many others which might be cited in support of the views expressed, we refer to the following: Rucker v. Donovan, 13 Kas. 251 ; O’Neil v. Garrett, 6 Iowa, 480 ; Buckley v. Furnis, 15 Wend. 137 ; Covell v. Hitchcock, 23 id. 611; Harris v. Pratt, 17 N. Y. 249 ; Loeb v. Peters, 63 Ala. 243 ; Newhall v. Vargus, 13 Me. 93 ; Inslee v. Lane, 57 N. H. 454; Hoover v. Tibbitts, 13 Wis. 79 ; Atkins v. Colby, 20 N. H. 155; Blackman v. Pierce, 23 Cal. 508 .
The record of this case discloses nothing from which we might infer that the carrier was the agent of the vendee. The goods were sold and consigned in the ordinary course of business between merchants, and when they arrived at Emporia they were taken out of the cars by the railroad company and placed in its warehouse, and there held in its character as carrier to await the payment of charges and a delivery to the consignee; The railroad company had not delivered the goods to the vendee, and in that respect its duty as carrier was incomplete. . The freight was never paid, nor have the goods ever reached the pos'session of-the vendee. The trausitus, therefore, had not terminated, and the vendor’s right of stoppage continued notwithstanding the seizure made under the .attachment sued out by the plaintiff. The cause was rightly decided by the district court, and its judgment will be affirmed.
All the Justices concurring.
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