carrier, his responsibility is changed, as we have seen, into that of a warehouseman. If no act remains to be done by him in his character as a carrier, his liability as such is at an end. And where he unites the two characters of a warehouseman and carrier, and receives goods for storage until an order of the owner is given to send them forward, or where he transports them to the end of the route, and there by agreement or by a usage tantamount to a contract, places them in store to await the call of the owner, he is responsible as a warehouseman while discharging the duties incident to that species of bailment.2

§ 627. The carrier is as much bound to deliver goods safely as he is to carry them safely. He is liable for the goods, where he delivers them. to a wrong party, though the misdelivery be procured by fraud. He is liable for the injury or loss of goods, caused by the breaking of the tackle or machinery used by him in landing or delivering the goods; unless the consignee himself furnishes the machinery or assumes the control and direction of the business; 5 or unless the contract relieves him from liability therefor."

The burden of proving a delivery, or equivalent facts, rests upon the carrier. The law requires him either to deliver, or to excuse a nondelivery of the goods.'

8

Where it appears to be the custom or course of business known to the consignor, the carrier may discharge himself by showing a delivery of goods or packages to a wharfinger; not so where the consignee calls for the goods at the proper place and in the proper time. Landing goods on a wharf, the carrier must see that they are actually received by the consignee or by some one authorized to act for him.10

1 Hyde v. Trent & Mersey Nav. Co., 5 Term R., 339.

2 Platt v. Hibbard, 7 Cowen, 497; 11 Adolph. & Ellis, 43; O'Niel v. N. Y. C. & Hudson River R. R. Co., 60 N. Y., 138; Rogers v. Wheeler, 52 N. Y., 262. 3 Winslow v. Vt. & Mass. R. Co., 42 Vt., 700; Claflin v. Boston &c. R. R. Co., 7 Allen, 341; Powell v. Myers, 26 Wend., 591; Collins v. Burns, J. & Sp., 518; 63 N. Y., 1.

* De Mott v. Laraway, 14 Wend., 225; he must provide a safe place of delivery; Sunderland v. Westcott, 2 Sweeny, 260.

Lonis v. Western Railroad Corporation, 11 Metcalf, 509.

6 Knowles & Randall v. Dabney, 105 Mass., 437.

7 Sheldon v. Robinson, 7 N. H., 157; Union Ex. Co. v. Graham, 26 Ohio St., 595. Farmers' & Mechanics' Bank v. Champlain Transp. Co., 23 Vt., 186, 209; Noyes v. Rutland & B. Railway, 27 Vt., 110; Hurd v. Hartford & N. Y. S. Co., 40 Ct., 48.

9 Graves v. H. & N. Y. Steamboat Co., 38 Ct., 143.

10 Hemphill v. Chenie, 6 Watts & Serg., 62; Dean v. Vaccaro, 2 Head (Tenn.), 488.

§ 628. The carrier must deliver, or tender a delivery, within the usual hours of business. If the goods arrive in the evening, too late for delivery on the same day, the carrier's responsibility continues until the proper time arrives for making a delivery. The defendants who were common carriers, undertook to carry certain boxes of goods on the railroad from Philadelphia to Columbia. The cars arrived at the latter place about sundown on Saturday evening, and by direction of the plaintiffs were placed on a sideling. The plaintiffs declined receiving the goods that evening on the ground that it was too late; whereupon the defendants' agent left the cars on the sideling, taking with him the keys with which the cars were locked, and promising to return on Monday morning. The cars remained there till Monday morning, when they were opened, and it was found that one of the boxes had been rifled; and it was adjudged that the defendants were answerable for the goods lost.1 § 629. The owner of the goods in the hands of the carrier, has the right to control the disposition of them.2 Prima facie the consignee has the right to control the delivery; 3 and yet the shipper may, as we have seen, reserve to himself the jus disponendi, and by transferring the bill of lading, convey the property to any other party; and where he does so, the party thus acquiring the indicia of title has the right to demand and receive the goods. The rule has been recently applied to the receipt given by a railway carrier; the same being considered in the nature of a bill of lading.*

' Eagle v. White, 6 Whart., 505; Hill v. Humphreys, 5 Watts & Serg., 123. 2 C. & P. R. R. Co. v. Sargent, 19 Ohio St., 438, holds that the party delivering and paying freight on goods, may resume control of them.

3 Sweet v. Barney, 23 N. Y., 335. When goods are delivered by a vendor to a carrier to be conveyed to a certain place with the added words, "for Messrs. Stein & Co."-these persons thus appearing to be the consignees of the goods, may demand them of the carrier at another place, and the carrier will be justified in delivering them. Cork Distilleries Co. v. Great Southern & Western R. Co. (Ireland), 7 L. R. H. L. Cas., 269; 8 Ir. R. C. L., 334.

Ante § 210-213; Emery's Sons v. Irving Nat. Bank, 25 Ohio St., 360; Mechanics' & Traders' Bank v. Farmers' & Mechanics' National Bank, CO N. Y., 40; Bailey v. Hudson River R. R. Co., 49 N. Y., 70; City Bank v. Rome, W. & O. R. R. Co., 44 N. Y., 136; 4 N. Y., 497; Rawls v. Deshler, 3 Keyes, 572; Dows v. Green, 24 N. Y., 633; Cayuga Co. Bank v. Daniels, 47 N. Y., 632; Marine Bank of Chicago v. Wright, 48 N. Y., 1; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y., 34; Brown v. Combs, 63 N. Y., 599; Armour v. Michigan C. R. Co., 65 N. Y., 111. It is apparent from these cases that the carrier is bound to deliver to the party having the title. The carrier's receipt is in effect a bill of lading. National Bank of Green Bay v. Dearborn, 115 Mass., 219; Newcomb v. Boston & Lowell Railroad, 115 Mass., 230; Alderman v. Eastern Railroad, 115 Mass., 233; Southern Ex. Co. v. Dixon, 15 Albany Law Journal, 491.

The carrier is entitled to a reasonable time to ascertain the identity of the consignee, or party holding the title. Being responsible for any mistake, the law allows him to act with deliberation.

§ 630. The carrier holds the goods subject to the vendor's right of stoppage in transitu, where that right exists and is properly asserted. The right to stop the goods in their transit, is based on the vendor's equitable demand for the purchase money. It is of equitable origin; it does not proceed upon the theory of rescinding the contract, but rather on the theory of repossessing and retaining the goods as a security for the price. It is regarded as a power tacitly reserved out of the former control which the consignor had over his property at the time of delivering it to the carrier, and therefore paramount to any agreement between the carrier and consignee, in respect of any duty, or right of lien which may arise upon those or other goods; so that if the consignor would exert this privilege, and reclaim the goods, he is subject only to such lien or duty as may have arisen in consideration of that particular bailment, for the labor and diligence bestowed on the goods.3

The right of stoppage in transitu on a sale of goods on credit, arises where the vendee becomes insolvent after the sale and before the goods have been actually delivered to him, or to his agent for him having some authority in respect to the goods unconnected with their transit; as to keep or dispose of them. The basis of the right is, that the insolvency of the vendee was not contemplated by the vendor in the sale, and that it is plainly just that he should, on account of that unforeseen event, endangering the loss of the price to be paid, be permitted to reclaim the goods and keep them as security for payment at any time before a delivery terminating their transit. The right is limited to that period, and ends with such a delivery.

§ 631. The right to stop the goods exists only where they are sold on a credit; and where it is necessary to secure the payment of the purchase money; c. g., it does not exist where the consignor owes the consignee a debt, equal in amount to the purchase price.5

The right exists where the consignee is insolvent at the time of the

1 McEntee v. New Jersey Steamboat Co., 45 N. Y., 34.

2 Gibson v. Caruthers, 8 M. and W., 337; Valpy v. Oakley, 16 Q. B., 941; 20 L. J. Q. B., 380; Griffiths v. Perry, E. and E., 680; 28 L. J. Q. B., 204; Wentworth v. Outhwaite, 10 M. and W., 436; Martindale v. Smith, 1 Q. B., 389.

3 Oppenheim v. Russell, 3 Bos. and Pul., 49; Jeremy on Car., 103; Gossler v. Schepeler, 5 Daly, 476.

4 Harris v. Pratt, 17 N. Y., 249, 263; 5 Daly, 476.

Clark v. Mauran, 3 Paige Ch., 373,

purchase, or becomes so before the goods are delivered to him.' The right does not necessarily presuppose a fraud in the purchase; and while the right can hardly be asserted where the vendor knew of the purchaser's insolvency at the time of the sale, it is clear that the consignor and seller may assert the right where, after the sale, he learns the fact that such insolvency existed at the time of the sale, viz., general inability by the purchaser to pay his debts.2

The right remains so long as the goods are in the hands of the carrier or other persons concerned in transporting them to the place of destination. It exists until the transit has ended; until the goods come into the actual or constructive possession of the vendee; until they come into the hands of some one receiving them as his agent, unconnected with the business of forwarding them.3 The right exists as long as the goods remain in the hands of a carrier or middleman; it does not cease on the carrier's storing the goods in his own warehouse, nor until he actually delivers the goods. Delivery to a warehouseman or wharfinger, who receives the goods at the place of destination in the ordinary course of business as a middleman, is not a constructive delivery to the purchaser; and the storing of the goods, at the place of destination, in a warehouse which the consignee is accustomed to use as his own, or placing them on a wharf from which the consignee is to take them, is a delivery of the goods terminating the right to arrest them.

5

6

The right continues to exist until the buyer receives, or has transferred the property to a bona fide purchaser for value, by a transfer, or by a pledge of the bill of lading. But since a transfer of the bill to a purchaser, or to a party honestly making advances upon it, is valid, it necessarily cuts off the right of stoppage in transitu. And the carrier must respect the rights of the party thus acquiring the title to the property.

1 The act is adverse to the vendee; Ash v. Putnam, 1 Hill, 302; 5 Daly, 476. 2 Parker v. Gossage, 2 C. M. and R., 617; Biddlecome v. Bend, 4 Ad. & E., 332; Buckley v. Furniss, 15 Wend., 137; 17 Wend., 504; Hitchcock v. Covill, 20 Wend., 167; Lacker v. Rhoades, 51 N. Y., 641.

3 Mottram v. Heyer, 5 Denio, 629; Covill v. Hitchcock, 23 Wend., 611; Holbrook v. Vose, 6 Bosw., 76.

'Calahan v. Babcock, 21 Ohio St., 281.

5 Edwards v. Brewer, 3 Mees. & Wels. R., 375.

6 Rowe v. Pickford, 8 Taunt., 83; Sawyer v. Joslin, 18 Vt., 172. The right is lost where the consignee intercepts the goods on the route, and takes them into his custody. Foster v. Frampton, 6 B. & C., 107.

7 Dows v. Greene, 24 N. Y., 638; Gurney v. Behrend, 3 Ellis & Bl., 622; Lickbarrow v. Mason, 1 Smith's L. Cases, 199, 6th ed. As to effect of seller's suit and recovery against carrier, see Rawls v. Deshler, 3 Keyes, £72.

8 Bailey v. Hudson River R. R. Co., 49 N. Y., 70.

§ 632. The right of stoppage in transitu is exercised by giving to the carrier or middleman notice not to deliver over the goods to the consignee, accompanied by a tender of the freight and legal charges. The form of the demand is not important: it is the carrier's duty to obey and act upon the notice; but since he acts upon his own responsibility, his prudent course is to ask for a bond of indemnity, protecting him against his possible liability to the consignee.1

The demand must be made of the proper party; the notice must be given to the carrier or middleman in whose custody the goods are at the time, so as to prevent a delivery of them to the vendee. In order to make the notice effectual, it must be given either to the person who has the immediate custody of the goods, or to the principal whose servant has such custody, at such time and under such circumstances that he may with reasonable diligence prevent the delivery of the goods to the purchaser or consignee.3

Without going more fully into this subject, it is proper to observe that the right to stop the goods at any time before they come into the possession of the consignee, is favored, because founded in equity; and that it prevails over attachments and executions levied upon the property on behalf of the creditors of the consignee at any time before the same reaches him; the vendor's right being considered the older and preferable lien.*

§ 633. The carrier is bound to deliver the goods on payment of the freight; the obligation to deliver and to pay being mutually dependent, the one upon the other.5 The acts are simultaneous and concurrent; the carrier is not bound to deliver without payment, and the consignee is only bound to pay the freight on a delivery of the goods; that is, when they are landed and ready to be placed in the custody of the consignee.5 The active duty in making a delivery is with the carrier, and as a fact usually precedes the payment of the freight; but where the delivery is procured by a false and fraudulent promise to pay the freight as soon as the goods are received, the carrier may disaffirm the act and retake or recover the goods in an action of replevin."

1 The Tigress, 32 L. J. Adm., 97. As to the form of the notice or demand required, see Harris v. Pratt, 17 N. Y., 249, 252.

2 Mottram v. Heyer, 5 Denio, 629.

3 Whitehead v. Anderson, 9 Mees. & Welsb., 518.

4 Smith v. Goss, 1 Campb., 282; 15 Wend., 144, 145; Coates v. Railten, 6 Barn.

& Cress., 422; 7 Term, 436; Dixon v. Baldwin, 5 East, 186; Rowe v. Pickford, 8 Taunt., 83.

5 Clark v. Masters, 1 Bosw., 177; Langworthy v. N. Y. & Harlem R. Co., E. D. Smith, 195.

6 Bigelow v. Heaton, 6 Hill, 43; S, C., 4 Denio, 496.

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