Langstaff v. Stix

ARNOLD, J., delivered the opinion of the court. [174] The right of stoppage in transitu is favored in law, and may be exercised at any time until the goods have come into 'the actual or constructive possession of the buyer, or, as otherwise expressed, the right may be exercised as long as the goods remain in the possession of the carrier, as carrier. Where the right of stoppage exists it is paramount to the claim of judgment or attaching creditors of the vendee, and it cannot be divested by the goods being levied on under execution or attachment in favor of such creditors. Morris v. Shryroch, 50 Miss. 590. No particular mode is prescribed by law for the assertion of the right, but to do so effectually it is essential that the vendor shall, before the goods are delivered to the vendee, give notice to the carrier or person in the immediate custody of the goods not to deliver them, and if á servant has the custody of the goods, and notice be given to his principal, it must be in time to enable him with reasonable diligence to prevent a delivery to the vendee. 2 Kent 544, n.; Benjamin on Sales, § 860. These conclusions are not disputed here, but it is insisted by appellants that the right of stoppage was defeated by a constructive possession of the goods by the vendee before notice was given to the carrier or person in the immediate cftstody of the goods to stop them, and before the attachment was levied,' and in this position the law is with the appellants. It was said by the court in Whitehead v. Anderson, 9 Meeson & Welsby 517, that a constructive possession by the vendee which supersedes the right of stoppage exists “ when the carrier enters, expressly or by implication into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee, as his agent, not for the purpose of expediting them to the place of original destination, pursuant to that contract, but in a new character, for the purpose of custody, on his account and subject to some new or further order to be given to him.” We accept this as a true and approved interpretation of what is meant by constructive possession, in a contest between the vendor and vendee or attaching creditors of the vendee, when the right of [175] stoppage in transitu is involved. Benjamin on Sales, §§ 846, 849; 2 Kent 545; Lickbarrow v. Mason, 1 Smith’s L. Cas. 1202, 1244, 1245. The application of the principle to the facts of record here is fatal to appellee. In the case before us, the goods were not in the possession of the carrier, as carrier, when they were attached. They had reached their destination by rail, and the liability of the' carrier, as carrier, had been terminated by the acts of its agent and the vendees. The payment of the freight and the receipt for .the goods by the ven-dees and leaving them in the railroad depot until they were sent for by the vendees, constituted the railroad company the agent of the vendees, not for the transportation, but for the custody of the. goods. Benjamin on Sales, §§ 846, 849, 856; 2 Kent 545; Lickbarrow v. Mason, 1 Smith L. Cas. 1202, 1244, 1245. JReversed.