6 Iowa 480 | Iowa | 1858
— The vendor’s right of stoppage in transitu continues until the goods have reached the buyer. When the transit is at an end, the delivery is complete, and the right of stoppage gone. But until the goods have reached their place of ultimate destination, as agreed upon by the buyer and seller, they are ordinarily liable to stoppage. The right remains, not only while the goods are in motion, and not only while they are in the hands of the carrier, but also while they are in the hands of a ware-houseman, or place of deposit connected with their transmission or delivery. Covell v. Hitchcock, 23 Wend., 611. Or in any place not actually or constructively the place of the consignee, or not so in his possession or under his control, that the putting them there implies the intention of delivery.
A delivery to a ware-houseman or wharfinger, at, the place of the ultimate destination of the goods, who does not receive them as the mere agent of the buyer, but in the ordinary course of his business as a middle-man, is not a constructive delivery to the purchaser, so as to put an end to the right of stoppage in transitu. Edwards v. Brewer, 3 Meason & W., 375. So, where the goods had been delivered to an agent of the buyer, who delivered them to a forwarding house for shipment, and they came
The only question in this case is, whether the delivery of the goods by the railroad company to Ogden & Copp, was a constructive delivery to Holmes, the buyer and consignee. ¥e do not think that it was. The plaintiff had notified the railroad company that Holmes was insolvent, and of their claim to stop the goods, whilst they were upon the east bank of the Mississippi river, and be fore they had been placed in the possession of Ogden & Copp. Ogden & Copp were warehousemen, who received the goods as they did other persons’ goods, from the company for forwarding, paying the freight and charges upon them, and holding them subject to Holmes’ order. They had no authority from Holmes to receive the goods ; they had never been his agents, or received goods for him before ; Holmes did not know the goods were in their possession.
Under these circumstances, it seems to us, that Ogden & Copp were the agents neither of the plaintiff nor of Holmes; and neither for the custody nor for the transmission of the goods. The railroad company having been notified of plaintiff’s claim to stop the goods on account of the insolvency of Holmes, and having in consequence placed them in the possession of Ogden & Copp, as ware-housemen, the latter held them for the railroad company, and their possession was the possession of the company, who had no right to part with the goods after the notice from Holmes, except to deliver them to him. There is nothing in the evidence from which it can be implied, that the delivery to Ogden & Copp was an intended delivery to Holmes. They •were subject to the order of Holmes in the possession of Ogden & Copp, only in the same sense that they were subject to his order in the hands of the carrier. The company could not defeat the right of stoppage, by delivering the goods to a warehouseman, not the agent
As to the effect of the levy upon the goods by the defendant, Garrett, as sheriff, by virtue of an attachment at the suit of a creditor of Holmes, there can be no doubt but that the plaintiff’s right as vendor is not divested by the levy before the goods came into the possession of the buyer. The plaintiff has the preference over the legal process of a general creditor, although, but for the suit, they would have fallen into the hands of the vendee, Holmes. Covell v. Hitchcock, supra; Buckley v. Furness, 15 Wend., 137.; Ib., 144; Naylor v. Dennie, 8 Pick., 198; 17 Wend., 505; Sawyer v. Joslin, 20 Vermont, 172; House v. Judson, 4 Dana, 11; Cox v. Burns & Rentgen, 1 Iowa, 64.
The district court erred in refusing to give the instruction to the jury, asked by the plaintiff, and in giving the first instruction asked by the defendant. There was error also in the second instruction asked by the defendant and given by the court, in awarding a preference to the attaching creditor, who seized the goods in the possession of the warehousemen, over the vendor, who asserts his rights of stoppage before they reached the buyer. The goods, in this instance, had not reach their destination, by being placed in the possession of Ogden & Oopp, who were in no sense the agents of Holmes. Cox v. Burns & Rentgen, 1 Iowa, 64.
The judgment will be reversed, and the cause remanded for further' proceedings not inconsistent with this opinion.