| Iowa | Jun 15, 1855
We have examined witb much care, most, if not all, tbe authorities cited by tbe court below, in support of its position, as well as tbe numerous authorities cited by tbe respective counsel, in tbe able arguments made in this case, bave attentively considered tbe above statement of facts, and arrive at a conclusion different from that of tbe court below.
That .tbe lien of a vendor of goods sold on credit, during tbe time tbat tbe goods are in transitu, is paramount to that of an attaching creditor, whether tbe attachment is levied before or after tbe vendors’ right to reclaim tbe goods is asserted, is a point tbat does not appear to be here questioned. This right is founded upon tbe implied condition in the sale, that if the vendee should become actually insolvent between tbe shipment of tbe goods, and tbe reception of theft, by the vendee, the vendor shall bave a right to reclaim tbe goods. To allow an attachment to bave effect before tbe transit is at an end, would be to defeat a useful and necessary provision of the law merchant. Naylor et al. v. Dennie, 8 Pick. 204. Much has been said in argument upon tbe question, whether there was any stoppage of these goods in transitu. If it were material to determine whether there was any such stoppage, in a strict technical sense, we would say, probably, that there was not, but that the facts found, show a recision of tbe contract, instead of a stoppage in transitu. A stoppage in transitu, in a strict sense, being in tbe language of tbe books, an adverse proceeding, must be exercised adversely to tbe vendee, which means simply, as we apprehend, as stated by tbe learned judge, in tbe case above cited, “ no more than" tbat the right of stopping in transitu, cannot be exercised under a title derived from tbe consignee — not that it should be exercised in hostility to him” — tbe force and true meaning of which will be clearly understood by a moment’s reflection on the rights of tbe consignor and consignee in tbe two cases.
In a strict stoppage, the consignor does not generally become at once restored to all the rights in relation to the goods he had before sale, but only to those he would have
But whether this was a stoppage in transitu, in a strict ■sense, or a recision, is not tbe question. Whether tbe assent of Earner & Co. that Ibmson should have back tbe goods, existed or not, we regard as entirely immaterial. Tbe main, and, perhaps, we may say, tbe sole question, that arises in this case, is, did Ibmson reclaim tbe goods before they came into tbe actual or constructive possession of Earner & Co. ? And this is so clear in point of fact, that it scarcely can be called a question. Tbe court finds, “that Earner & Co. did not receive or get possession of them ” ■(the goods), and nothing appears showing that any other person got any possession that might be constructively regarded as Earner & Co.’s possession, in case this finding should be construed to mean actual possession only. Certainly, Warren did not; be claimed tbe goods as Ibmson’s. When be claimed to be Ibmson’s agent, Taunton, of tbe firm of Earner & Co., requested that be should take possession of tbe goods, if they came, for tbe benefit of Ibmson, and to write to Ibmson and have tbe goods stopped. And here, so far as Earner & Co.'^intention to disagree to tbe consignment was concerned, this intention not to receive tbe goods, whether Warren was, or was not, tbe agent of Ibmson, in fact, is equally «clear, unless something appears that should have led Far-ner & Co. to suspect that be was not such agent. And nothing is apparent inconsistent with bis agency, though not proved by legitimate testimony to be Ibmson’s agent Warren nowhere claimed tbe goods by any title derived from Earner & Co., nor did be claim any title in himself in any way whatever. Without recounting tbe facts, we say,
We see nothing in the facts found that could have so impaired Ihmson’s lien as an unpaid vendor, as to give the attachment precedence over it. The authorities above sited, and those referred to in them, amply justify the several legal positions herein, assumed, and are fully sustained by many others, cited by appellee.
We may add, that there is nothing in the recitals of testimony in brackets, that would materially alter the conclusion at which we have arrived.
Inasmuch as the costs of the court áre not here apparent, it is ordered that a procedendo issue to the District Court, requiring it to proceed to enter judgment against the plaintiff, James E. Cox, for costs of suit incurred in that court.
Judgment reversed..