Eaton v. Cook

RfcDi'iBLD, Ch. J. I. The parties treated the transaction, in this case, as a sale directly from the plaintiffs to the defendant. The goods were so billed. If that is the proper view of the case, there was no credit, and of course no right to stop in transits For that right is made dependent upon the sale being upon credit. So far as the defendant is concerned, the case is the same as if the goods had been bought upon the sale of the note, or accepted bill of Barnes & Brothers, without any indorsement or guaranty by the defendant, or an indorsement without recourse. In that view there could be no pretence of any right to stop the goods in transitu. II. And as a sale to Barnes & Brothers, and a resale by them, there seems to arise a difficulty in presuming any right of stoppage in transitu. For if the vendor consent to a resale or know the purchase is for that purpose, he is bound by the commencement of the new destination as a final and irrevocable delivery. The same as when the goods are sent abroad, upon an adventure. Stubbs v. Lund, 7 Mass. 453, and cases cited. Stoveld v. Hughes, 14 East. 308, was a case where the goods were resold and marked by the second vendee, by the consent of the vendor, which is n ot stronger than the present case, viewed as a resale. For here the goods were purchased for the express purpose of resale to the defendant, and were delivered to the carrier not to be carried to Barnes & Brothers, or with any provision for any transit to them. This delivery then was final, and accomplished all the possession ever contemplated by Barnes & Brothers. III. And if we attempt to maíre it a sale to Barnes & Brothers, and to find a journey or transit, there was in fact nothing of the kind contemplated, so far as the vendees were concerned. And the cases all require that fact to exist, in order to create the' right to stop in transitu. Upon the delivery to the carrier it had effect tually come to the possession of Barnes & Brothers as much as it ever was contemplated that it would come. This is expressly recognized in numerous cases. Rowley v. Bigelow, 12 Pick. 214 ; Noble v. Adams, 7 Taunton 59. [61] There is no doubt if the vendee make a resale of the goods, he makes it subject to the vendor’s right to stop the goods in transitu. But this is while the goods are going to the first vendee. After the first vendee has resold them and put them on their second passage, the transit, between the vendor and his vendee is at an end. But a resale will not defeat the vendor’s right to stop the goods in transitu, until they have reached their first destination, unless the bill of lading is assigned, or the vendee has anticipated the arrival, and taken possession, which he may do, or the vendor consents to the resale, which is this case from the beginning. So that this case never involved the right to stop in transitu towards Barnes & Brothers, as no such transit ever existed, or was contemplated. All the transit there ever was in this case is one towards the second vendee, when the delivery by the vendor to the carrier was for that purpose. Lickbarrow v. Mason, 1 Smith’s Lead. Cases, 433 and notes. The case of Coats v. Railton, 6 B. & C. 422, goes upon the ground that Butler, Knes & Co., of Lisbon, were the real purchasers although the purchase was in the name of Butler & Brothers of London, (the partners in both houses being the same except Knes,) although to be paid by a bill upon Butler & Brothers. That bill being dishonored, the vendees still remained liable for the price, and the right to stop in transitu still continued. Unless the case is explainable upon the ground that both houses were virtually the same, it is at variance with all the other cases upon this point. And Baylky, J., in this case says, that when the goods are bought to be sent to another, and this named to the vendor as their destination at the time of the purchase, the transitus is at an end whenever the goods are put upon this transit; citing Leeds v. B. & P. 320, which would seem to be altogether atvariance with the purpose for which he cites it, unless the two houses are treated as virtually one in interest, and the delivery at Lisbon as a delivery to the vendees themselves. Judgment affirmed.