Putney, J.
1. It is insisted that the finding that the J. B. Dixon Lumber Company was insolvent was without any evidence to support it, and that therefore the claim of the *256plaintiff to exercise the right of stoppage in transitu of the lumber, December 21, 1891, was without any warrant or foundation. The sale of the lumber by the plaintiff to that company occurred in the early autumn of 1890, and the purchase price became due February 15, 1891. This was a just •and undisputed debt. Effort to collect it had proved unavailing, and the purchaser had wholly failed to respond to its obligation for a period of over ten months. Investigation then made showed that there was no such, concern located at or about the- alleged place of its business, and it was not named in the city directory. The person in charge where it had done business stated that there was no such concern, but that it was J. B. Dixon. The witness Cooper, ' examined by the defendant, testified that X B. Dixon was the president of the J. B. Dixon Lumber Company, and that he (witness) was connected with the company “during its ■corporation, so to speak,— not exactly in its literal sense,— during its continuance in business, up to about the first of February, 1891.” The just inference is that this company was a corporation, and that it had suspended business February 1,1891, a few days beforp the plaintiff’s debt matured. •Strict proof of insolvency is not required in order to justify the exercise of the right of stoppage m transitu. “By the word ‘insolvency’ is meant a general inability to pay one’s ■debts; and of this inability the failure to pay one just and admitted debt would probably be sufficient evidence.” Benj. Sales, § 837; Smith, Merc. Law, 550, and note. It had failed to pay the just and undisputed debts it had owed to the plaintiff and to the defendant for over ten months. Inquiry made at the former place of business of the debtor elicited the information that there was no such concern,— that it was only J. B. Dixon; and the fact that the witness Cooper, connected with it during its corporate existence and having some knowledge of its business, called to show that the right of stoppage had been terminated by delivery *257to the company or its agent, was not interrogated as to its solvency, is quite suggestive, in view of the facts in evidence, when fairly satisfactory proof of its solvency would have •been fatal to the plaintiff’s action. The evidence constitutes sufficient prima facie proof of insolvency to sustain the finding. There was no attempt made to dispute this evidence or to rebut it. We must hold that the evidence was suffi-oient to warrant the finding.
2. Had there been a delivery of the lumber, in view of the ■evidence, to the consignee, or to an agent of the consignee, so that the defendant had no longer any possession or control of it as carrier? The lumber had reached its ultimate destination, and the controversy is really reduced to the question whether the defendant held it as carrier or as the agent and warehouseman of the consignee. It may be properly said that the possession of the lumber by the defendant was ambiguous, and that it is necessary to gather the intention of the parties from their acts and the effect the law imputes to what they have done. It is said that nothing prevents an agreement by the carrier to hold the goods, after arrival at destination, as agent of the buyer, though he may at the same time say, “ I shall not let you take them till my freight is paid.” The question is one of intention, and in Whitehead v. Anderson, 9 Mees. & W. 518, the captain was held not to have intended such an agreement by telling the assignee that he would deliver him the cargo when he was satisfied about the freight; Parke, B., saying: “There is no proof of such a contract. A promise by the captain to the agent of the assignee is stated, but it is no more than a promise, without a new consideration, to fulfill the original ■contract and deliver in due course to the consignee on payment of freight, which leaves the captain in the same situation as before.” Benj. Sales, § 853. The existence of the carrier’s lien for unpaid freight, it is held, raises a strong presumption that the carrier continues to hold the goods as *258carrier and not as -warehouseman; and in order to rebut this-presumption there must be proof of some arrangement or agreement between the buyer and the carrier whereby the-latter, while retaining his lien, becomes the agent of the buyer to keep his goods for him. Ex parte Barrow, 6 Ch. Div. 783.
In Ex parte Cooper, 11 Ch. Div. 68, it was held that :: “Where goods are placed in the possession of a carrier to-be carried for the vendor to be delivered to the purchaser, the trcmsitus is not at an end so long as the carrier continues to hold the goods as carrier. It is not at an end until, the carrier, by agreement between himself and the consignee,, undertakes to hold the goods for the consignee, not as carrier, but as his agent.” Unless something equivalent to an, attornment on the part of the carrier to the consignee is shown, so that he has altered his position and holds the-goods in another capacity, the transitus is not at an end: No doubt, where the carrier enters into a new contract with the consignee, distinct from the original contract of carriage, to hold the goods for him as his agent in a new character for the purpose of custody on his account, the trcmsitus would be at an end and the goods constructively in the possession of the consignee. McLean v. Breithaupt, 12 Ont. App. 383, 388, 390. In Whitehead v. Anderson, 9 Mees. & W. 518, the court say: “A case of constructive-possession is where 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;” and James, L. J., shortly puts it in Ex parte Cooper,, 11 Oh. Div. 68, that “ there must be no such change as makes the carrier or warehouseman the holder of the goods as the-agent of the vendee.”
*259In Hoover v. Tibbits, 13 Wis. 79" court="Wis." date_filed="1860-11-19" href="https://app.midpage.ai/document/hoover-v-tibbits-6598304?utm_source=webapp" opinion_id="6598304">13 Wis. 79, this court held that where the warehouseman to whom the goods are directed to be sent receives them as the agent of the carrier, and while he is holding them as such agent for the purpose of collecting freight and charges the vendor asserts his right of stoppage of the goods, they will not be considered as in the possession of the vendee, so as to cut off that right; and in Harding P. Co. v. Allen, 65 Wis. 584, the rule laid down in Benj. Sales (2d Am. ed.), 788, is declared to be the rule in this state,— that “ if the possessor of the goods has the intention to hold them for the buyer, and not as agent to forward, and the buyer intends the possessor soto hold them for him, the transitus is at an end; but I apprehend that both these intents must concur, and neither can the carrier of his own will convert himself into a warehouseman, so as to terminate the transitus, without the agreeing mind of the buyer, nor can the buyer change the capacity in which the carrier holds possession without his assent, at least until the carrier has no right whatever to retain possession as against the buyer.” In Sherman v. Rugee, 55 Wis. 346" court="Wis." date_filed="1882-09-19" href="https://app.midpage.ai/document/sherman-v-rugee-6603829?utm_source=webapp" opinion_id="6603829">55 Wis. 346, 347, the question is broadly put whether there was ever a moment in which the purchasers had dominion and control over the property. Delivery, actual or constructive, by the carrier to the consignee or his agent, is a part of its duty as such, and, until performed, it cannot be said that the carrier has ceased to hold the goods as carrier. The real question is whether, under the evidence, it is a just inference that the carrier has intended to waive his lien for freight, and to surrender dominion and control over the property, or to hold it subordinate to and for the consignee. Unless the evidence justifies such a conclusion, the fair implication of the law is that, if the goods are in the carrier’s warehouse awaiting payment of freight and other charges, then the transitus has not been ended, but that the carrier holds them in his capacity of carrier, to keep good his common-law lien for freight and charges, and *260that they are subject to the vendor’s right of stoppage. Calahan v. Babcock, 21 Ohio St. 281; Symns v. Schotten, 35 Kan. 310" court="Kan." date_filed="1886-01-15" href="https://app.midpage.ai/document/a-b-symns--co-v-wm-schotten--co-7886727?utm_source=webapp" opinion_id="7886727">35 Kan. 310.
The evidence fails to establish an agreement or contract which would constructively render the possession of the defendant of the lumber in' its warehouse the possession of the consignee. Simons, the freight agent, had no personal knowledge of the transaction. It occurred before his connection with the defendant company. He does not claim to know of any such arrangement between the defendant and the consignee. He testified only to the existence of a custom of the defendant, as he gathered it “ from its records and papers in his charge ” when he gave Ms testimony; and he said that such custom had existed with all railroads terminating in Boston for years; but that was merely a custom on the part of the consignees of lumber to leave it in the sheds of the carrier, at their expense and risk, “ to be taken away by them at any time, upon payment of freight and charges,” and was no more than an understanding or custom on the part of the carrier to deliver on the usual terms and according to the contract with him as carrier. It did not give the consignee any new rights, and did not give him dominion or control over the property. Cooper’s testimony is equally inadequate to the purpose intended, and was, in substance, the same. He defined the right of the J. B. Dixon Lumber Company, after the lumber had been stored in the shed of the carrier, in the same way, as “a right to remove it whenever it was convenient to do so, subject to the payment of the charges of the railroad company,” — the same right upon which any consignee may obtain his goods of a carrier. Speaking of the fact that after the lumber was stored in the shed part of it was delivered to him for the J. B. Dixon Lumber Company, he said, “ Some person connected with the freight department authorized- me to take it.”
*261The language of Lord Blackburn in Kemp v. Falk, 7 App. Cas. 584, is quite pertinent: “The freight was not paid, but I think it is possible to make an arrangement by which, though the freight is not paid, the shipowner changes himself completely into a warehouseman, instead of being a carrier or shipowner. He alters his responsibilities altogether, and yet, by arrangement or agreement, retains a lien over the goods until the freight is paid. I think such a contract might be made. But when one is asked to say that such a contract was made, the nonpayment of the freight is a very important element leading one to say that no such contract was made at all. In this case I cannot help thinking that no such contract was made, and there is no reason why we should hold that it was. The shipowner acted in the same way as if it had not been made, and in no other way.” And the defendant so acted in the present case, as well as the consignee, as we have seen. The witnesses do not testify to, any agreement or contract, or even understanding in the contractual sense, such as is relied upon to work a constructive delivery; and within the principles referred to, upon the evidence in the record, none can be deduced or implied.'
3. The contention that a delivery of a part of the consignment operated as a constructive delivery of the remainder, cannot be sustained. Whether delivery of a part amounted to a delivery of the remainder is a question of intention, and a delivery of a part will not be a delivery of the whole unless the circumstances show that it was intended so to operate. It cannot be supposed that the carrier intended to abandon his lien for the unpaid freight and charges. Benj. Sales, § 857; Ex parte Cooper, 11 Ch. Div. 68; Buckley v. Furniss, 17 Wend. 504" court="N.Y. Sup. Ct." date_filed="1837-10-15" href="https://app.midpage.ai/document/buckley-v-furniss-5514812?utm_source=webapp" opinion_id="5514812">17 Wend. 504; Crawshay v. Eades, 1 Barn. & C. 181. Much more clearly would this be so where, as in this case, it was understood that delivery could be had only on payment of unpaid freight and charges.
4. The order given March 9, 1891, by the J. B. Dixon *262Lumber Company to E. C. Rill upon the defendant to deliver the lumber in question to him “ on payment of freight and charges,” and left with the defendant, could only operate to give Rill whatever rights the J. R. Dixon Lumber Company had. • There is nothing to show that the defendant ever assumed to hold the lumber as his agent, or that it ever recognized any right on his part to have the delivery of it, or that it ever agreed to deliver it to him upon any terms whatever. The evidence shows that the defendant afterwards regarded the J. R. Dixon Lumber Company as entitled to the delivery of the lumber upon the usual terms, as before. There is nothing in the case to show that this order is entitled to any significance in the present controversy. -
The defendant has been fully protected in its rights by the judgment of the circuit court, and no error has intervened to its prejudice.
By the Court.— The judgment of the circuit court is affirmed.