of Gillett, and detailed by Clark in his deposition, were mere hearsay, and properly excluded. We do not understand upon what principle it is sought to vary or change the written agreement of Clark & Co. by parol. That agreement is supposed to contain all the contract between the parties, and its terms cannot be varied or changed by any verbal understanding between the parties made at the time the same was executed. That was an absolute agreement to pay on Laundrie's ordez, and it cannot by a mere verbal understanding be made to depend upon any other condition.

5. Reading the deposition of Gillett taken in this action, and reading his deposition to the same effect taken in another action involving the same subject-matter, was not such an error, if error at all, as could prejudice the rights of the defendants. The deposition of Kinnard seems to have been entirely harmless, so far as it affected the rights of either party. Counsel in their brief raised no objection to said depositions because a copy thereof was used instead of the original, and we therefore do not consider the question.

6. The verdict of the jury was rendered March 6, 1885, in favor of the plaintiff, and against the defendants Clark & Co., for the sum of $1,787.50. The judgment, as rendered on this verdict, computed interest thereon from the 28th day of August, 1882, at the rate of ten per cent. per annum, amounting to the sum of $449.84, and also interest at the rate of ten per cent. per annum on the sum of $2,287.50 from the 23d to the 28th day of August, amounting to the sum of $3.16, making the judgment, as rendered, amount to the sum of $2,240.50.

The only judgment that could properly be rendered on this verdict was a judgment for $1,787.50, which would bear interest from the date of its rendition at the rate of

ten per cent. per annum. And it is hereby ordered that the judgment herein, in favor of the plaintiff and against

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the defendants H. Clark & Co., be reduced to the sum of $1,787.50, as of date March 6, 1885, and when so modified that the same be and is hereby affirmed, with costs.

Judgment modified and affirmed.

WALSH, respondent, v. BLAKELY, appellant.

SALE-Delivery to common carrier - Bill of lading.-Delivery of goods by consignor to a common carrier prima facie vests the right to the immediate possession thereof in the consignee, and the effect of a consignment of goods by a bill of lading is to vest the property in the consignee.

SAME — Transfer of bill of lading changes possession. — A bill of lading is a symbol of the ownership of the goods covered by it, and the transmission of such bill of lading transfers the possession of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property.

STOPPAGE IN TRANSITU When seller may have.― Seller, on discovering that the buyer is insolvent, may stop the goods while in transit before the buyer acquires possession, if the purchase price remains unpaid.

SAME-Transit, when begins and ends. When the carrier takes possession from the seller as carrier, the transit begins; when he divests himself of possession in such capacity to the buyer, the transit ends; and the stoppage by the seller, to be effective, must occur between these two points.

SAME Possession by buyer defeats right of stoppage. - Buyer has the right to break the original transit and intercept the goods, personally or by means of an authorized agent, at any intermediate point on the route. By taking the goods into his personal custody, or that of his exclusive agent, either before the transit begins or midway or at the end, he assumes an entire control of possession, in such a sense as utterly extinguishes the seller's right to stop them as his own.

EVIDENCE IN THIS CASE REVIEWED, and held not to justify the finding that, at the time of the stoppage of the goods, the consignee was insolvent, and to show that, at such time, the goods had been taken possession of on belalf of the consignee by his authorized agent.

Appeal from First District, Gallatin County.

THE opinion states the facts.

LUCE & ARMSTRONG, for the appellants.

VIVION & SHELTON, for the respondent.

Stoppage in transitu is a legal right of vendor. Story on Sales, pp. 318, 323. Insolvency of vendee means only inability to pay. Parsons on Cont. vol. 1, chap. 6, pp. 595–6; 4 Cush. 134. It makes no difference if the sale was on credit. Story on Sales, p. 327. The goods were still in transit. Story on Sales, p. 342; 30 Pa. St. 254; 23 Wend. 611; Smith's Merc. Law, p. 682, sec. 3; 7 Cal. 213; 37 id. 630; 23 Cal. 509; 12 Ohio St. 515.

WADE, C. J. Goods, consisting of whisky, brandy and gin, were sold on sixty days' time by Walsh, the respondent, at St. Joseph, Missouri, to Edwin F. Potter, of Poney, Montana, and by Walsh shipped to that place as per bill of lading of April 7, 1883. When the goods arrived at Bozeman, Montana, they were attached by the sheriff of Gallatin county, at the suit of some third person, against Potter, and thereupon Walsh instituted this action to recover the possession of said goods.

There was a trial before the court sitting without a jury, and findings of fact upon which a judgment was rendered in favor of plaintiff (respondent), from which, and from an order overruling motion for a new trial, the defendant ap peals to this court.

The court found the following facts: "I find in this case that the plaintiff, James Walsh, was a resident of St. Joseph, Missouri, and in April, 1883, sold to E. F. Potter a bill of goods, which were shipped to him, marked, and consigned on the 7th of April, 1883, to E. F. Potter, at Poney, Montana territory, by railroad; that the goods were sold on a credit of sixty days, for $420.45, no part of which was paid; that plaintiff learned of the insolvency of Potter, and this fact of insolvency appeared and has been proven; that in the month of June, 1883, the said Potter went from Poney to Bozeman, in Montana, and the firm of Speith &

Krug, who were engaged in brewing and selling beer there, and (informed them) that these goods were coming by railroad to Bozeman, and asked of them to take charge of them when they arrived. He asked them to pay the freight, stating that he would pay them for it upon notice of the arrival of the goods; that Speith & Krug then agreed to pay the freight and hold the carrier's lien upon the goods therefor, until it was paid by Potter to them, and to hold the goods until that time, and did not agree to take Potter's promise for the payment; that upon this occasion, Speith & Krug went to the office of Sebree, Ferris & White, of Bozeman, and Potter told them to deliver the goods to Speith & Krug when they arrived; that there was due to Speith & Krug a small sum of money from said Potter for goods furnished, and this property was also pledged for this debt; that on the 30th day of June the goods arrived in Bozeman; that Speith & Krug went to Sebree, Ferris & White on that day, paid the freight from St. Joseph to Bozeman, some $40 or $50, and took the goods to their own warehouse, to be held there subject to the order of Potter, upon his payment of the freight and expenses, and that they were deposited in their warehouse on that day. And on that day they were seized by the defendant, by virtue of a writ of attachment, in favor of Warren C. Pincheton, issued to him as sheriff of Gallatin county, against said Edwin F. Potter, and that the coroner now holds the goods by authority of the writ for claim and delivery herein.

"It is further found by the court, that the goods were in the hands of Speith & Krug, pledged for the payment of the freight and charges by them paid to the carriers, and that they were subrogated to the rights of the carriers, and have a valid lien for the amount as paid by them; that the goods are in transit and were in transit at the time of their seizure by the defendant; that the plaintiff is entitled to the possession of the same, subject to the rights of Speith & Krug, and to their lien for freight."

These findings were duly excepted to by the defendant,

and there were specifications of particulars in which it was claimed that the evidence was contrary to and insufficient to justify the findings.

The entire evidence in the case, upon which the findings rest, is, in substance, as follows:

James Walsh, the plaintiff, testified that he was a merchant, doing business at St. Joseph, Missouri, and that he sold to Edwin F. Potter the goods mentioned in the bill of lading on sixty days' time, on the 7th day of April, 1883; that the goods were consigned to Potter at Poney, Montana, and delivered by Walsh at the railroad depot in St. Joseph, as contracted, and that the goods had not been. paid for.

The witness was then asked the following question: "Had you any information as to the solvency of the said Potter at the time the goods were in course of transportation? and if you reply that he was insolvent, state how you know that to be so, and when you first learned the fact of his being so."

To which the following answer was given: "I did have information as to Potter's solvency, and to the effect that he was solvent, but learned of his insolvency through Mr. D. W. Crowley, who was authorized to collect the bill from said Potter." And this was all the evidence upon the subject of Potter's insolvency.

Charles Krug, of the firm of Speith & Krug, testified that he saw Potter in June, 1883; that he was indebted to Speith & Krug, and said he had goods coming on the railroad, and asked Speith & Krug to take charge of them when they arrived. The goods were in the possession of Speith & Krug, and they were marked and consigned to Mr. Potter at Poney. "We received the goods on the 30th of June, upon the terms that we were to receive and hold them to let him know when the goods came. We were to pay the freight, and he said he would pay us for it, and should let him know and he would tell us when to ship them. He came here at the time the goods arrived. I told him that the goods were