Mohr v. Boston & Albany Railroad , 106 Mass. 67 ( 1870 )

Morton, J.^*

This is an action of replevin to recover fifty barrels of whiskey in the hands of the defendants as common carriers. The plaintiffs’ right to maintain the action depends upon the question whether they had the right to stop the goods in transitu, as between them and Dewey, the vendee and consignee of the goods. The rule is generally stated to be that the vendor’s right of stoppage in transitu continues until the goods have reached their ultimate destination and come into the actual possession of the vendee. Stubbs v. Lund, 7 Mass. 453. Stanton v. Eager, 16 Pick. 467. Arnold v. Delano, 4 Cush. 33. Grout v. Hill, 4 Gray, 361. While the goods are in the hands of a carrier or warehouseman, on their way to the vendee, the vendor, in case of the insolvency of the vendee, has the right to stop them and assert his lien for the price. The question in this case is, whether the whiskey in question had, before the plaintiffs brought their suit, reached its destination and come into the possession of the vendee within the meaning of this rule of law. The whiskey was part of a lot of 250 barrels which Dewey purchased of the plaintiffs in October 1868. At the time of the sale, the whiskey was in bond in a United States government warehouse in Terre Haute, Indiana, insured in the name of the plaintiffs and belonging to them. The sale was made in Boston, Dewey being a merchant of that city, and the destination of the goods contemplated and provided for in the contract was Boston. The bill of exceptions states that “ it was a part of the terms of the sale that the plaintiffs should from time to time, as Dewey should request, ship the goods to Boston from the bonded warehouse, and pay the storehouse charges, taxes, stamps and insurance, drawing on Dewey at ten days’ sight for the amounts so paid.” In pursuance of this arrangement, the plaintiffs at four different times prior to February 1869, at the request of Dewey, shipped lots of fifty barreis each to Boston, and in February 1869, at the request of Dewey, shipped to Boston the remaining fifty barrels, being the lot in controversy in this suit. It is clear that the destination provided for in the contract of sale was Boston; and we are of opinion that the goods, while in the government warehouse, must be deemed to be in the hands of an intermediate agent, on their way to the vendee.

If the transaction had been simply a sale of these fifty barrels, one of the terms being that the vendors should forward them to Boston within a time specified, or within a reasonable time, and they had forwarded them accordingly, it seems too clear to admit of doubt, that the vendors’ right of stoppage in transitu would exist and continue until the goods reached their destination.

The principle is, that the transitus is not at an end until the' goods have reached the place contemplated by the contract between the buyer and seller as the place of their destination. Coates v. Railton, 6 B. & C. 422. Winks v. Hassall, 9 B. & C. 332. Thus it has been held that goods shipped in the vendee’s own ship were not at the end of the transit until they reached the place of destination, if the contract contemplated that they were to be sent forward. Newhall v. Vargas, 13 Maine, 93.

In the case at bar, something remained to be done by the vendors, under the contract of sale, before the goods would come into the possession of the vendee at the place of destination. The contract contemplated that they were to forward them to Boston. If the goods had been and remained in their actual possession, as vendors, until they forwarded them on the order of Dewey, their right of stoppage in transitu would have been unquestionable. Arnold v. Delano, 4 Cush. 33. The result is the same though they remained stored in a government warehouse, unless the transfer to Dewey upon the records at the warehouse is to be treated as the termination of the transit. But, as we have seen, the terms of the sale provided that the plaintiffs should forward the goods to Boston as their place of destination, and the storage in the warehouse was preliminary to their transit, and not the termination of it. It is no answer to this view, to say that there was a constructive delivery of the whiskey to Dewey which vested the property in him, and that he. had the right to take possession of it and withdraw it from the warehouse. In all cases of delivery of goods to a common carrier for the purpose of transit, the vendee, acting in good faith, has the right to intercept the goods before they reach their destination, and, by taking actual possession of them, to defeat the vendor’s lien. But unless he does so, the lien continues till they reach the end of the transit. Dewey did not take possession of these goods at the warehouse, but left them, to be forwarded by the plaintiffs under the contract. We are of opinion, upon the facts of this case, that when the plaintiffs obtained possession of the whiskey in question by their writ of replevin it was in transitu, and they had a right to stop it for the purpose of enforcing their equitable hen for the price. Exceptions overruled.

* Colt, J., did not sit in this case.