3 Bos. & Pul. 119. See Ash v. Putnam, 1 Hill, 302; Naylor p. Dennie, 8 Pick. 198.
1 Bartram v. Farebrother, Dan. & Lloyd, 42; 1 M. & P. 515; 4 Bing. 579.
2 Sweet v. Pym, 1 East, 4; Siffken p. Wray, 6 East, 371; Law Mag. vol. v. 159; Abbott on Shipp. 373.
3 Stiles 0. Howland, 32 N. Y. 309 (1865).
4 See, on this subject, Hays v. Mouille, 14 Penn. St. 51; Chandler v. Fulton, 10 Texas, 2; Rogers p. Thomas, 20 Conn. 54.
5 The Constantia, 6 Rob. Adm. 321; Abbott on Shipp. 371.
§ 1041. The right of the vendor to stop the goods may, however, be determined either by, 1st. An actual delivery into the possession of the vendee; or, 2d. By a constructive delivery. Whenever the transitus is terminated, the right of stoppage is gone; and if an actual delivery have taken place, the mere fact that it was made by an agent or servant after notice not to deliver had been received by his principal or master will not operate to stop the goods.
§ 1042. 1st. By Actual Delivery. If the goods come into the actual possession of the vendee, and within his corporal touch, the right of the vendor to stop them is gone,5 whether such possession be obtained by the arrival of the goods at the place designated by the vendee, or by a delivery at his warehouse, or at a warehouse used by him, but belonging to another person,1 or be intercepted by him on their passage.
1 Feise v. Wray, 3 East, 102; Hodgson v. Loy, 7 T. R. 440; Newhall v. Vargas, 13 Me. 93; 2 Kent, Comm. lect. 39, p. 541.
2 See Hays v. Mouille, 14 Penn. St. 48; Donath v. Broomhead, 7 Barr, 301; Edwards v. Brewer, 2 M. & W. 375.
3 Vertue v. Jewell, 4 Camp. 31; Smith v. Bowles, 2 Esp. 578; Wood v. Jones, 7 D. & R. 128, 129; Clark v. Mauran, 3 Paige, 373.
4 Wood v. Jones, 7 Dowl. &Ryl. 126; Kinloch v. Craig, 3 T. R. 119. 5 2 Kent, Comm. lect. 39, p. 547; Oppenheim v. Russell, 3 B. & P.
44; Mills v. Ball, 2 B. & P. 461; Foster v. Frampton, 6 B. & C. 107; Newhall v. Vargas, 13 Me. 93. If goods are forwarded by a manufacturer to a railroad station whence they are taken by the servants of the purchaser, and by the latter immediately returned to the railroad station, and the manufacturer is notified that the purchaser will not take them, and while the goods remain at the station the purchaser fails, the tran~ situs is never determined, and the unpaid vendor has a right to stop them. Bolton v. The L. & Y. Railway Co., Law R. 1 C. P. 431 (1866).
§ 1043. 2d. Constructive Delivery. A constructive delivery of the goods will ordinarily defeat the vendor's right to stop them. There are, however, exceptions to this rule; and the distinction which seems to reconcile the contradictory cases of constructive delivery is, that if the delivery be to an agent or carrier, though appointed by the vendee, for the purpose of transmission or carriage to the vendee, it will not interfere with the right of the vendor;2 but if the delivery be to a special agent or bailee, representing the vendee, and receiving the goods either for custody only or for sale or other disposal, as the vendee shall subsequently direct, the right of stoppage is gone.3 Whenever, therefore, goods are sent to an agent, to be forwarded by him to the vendee, they are not constructively delivered until they come to the vendee's possession.4 Whether a delivery to a common carrier, or packer, or warehouseman, be a constructive delivery, so as to defeat the right of the vendor, or not, depends upon the question whether he held them as a mere intermediate person or as a special agent or bailee of the vendee. But although a vendee, to whom goods have been shipped, have paid the freight or given his note, yet if, in consequence of the loss of the invoice, the goods be stored in the custom-house on their arrival, and do not come to his possession, and there remain until the note becomes due, and the maker fail to pay it and becomes insolvent, the vendor's right of stoppage still remains.1
1 Hunter v. Beal, cited 3 T. R. 466; James v. Griffin, 2M.&W. 623; Scott v. Pettit, 3 Bos. & Pul. 469; Rowe v. Pickford, 8 Taunt. 83; Dixon v. Baldwen, 5 East, 175; Barrett v. Goddard, 3 Mason, 107.
2 Newhall v. Vargas, 13 Me. 93.
3 2 Kent, Comm. lect. 39, p. 545; Selw. N. P. 427 (11th ed.); Leeds v. Wright, 3 Bos. & Pul. 320; Rowe v. Pickford, 8 Taunt. 83; Wright v. Lawes, 4 Esp. 82; Fowler v. Kymer, cited in 3 East, 396; Stubbs v. Lund, 7 Mass. 453; Dixon v. Baldwen, 5 East, 175; Foster v. Frampton, 6 B. & C. 107; Hodgson v. Loy, 7 T. R. 440; Mills v. Ball, 2 Bos. & Pul. 457; Loeschman v. Williams, 4 Camp. 181; Sawyer v. Joslin, 20 Vt. 172; Key v. Cotesworth, 7 Exch. 595; 14 Eng. Law & Eq. 435.
4 See Aguirre v. Parmelee, 22 Conn. 473.
§ 1044. Another test of constructive delivery is to be found in the question whether the place of ultimate destination contemplated in the sale has been reached. If it be reached, the right of stoppage is gone; if it be not, the right still remains. If, therefore, goods be sent to an agent, there to await further orders, or to be disposed of by him as he may think expedient, or to be sold by him, or to be transmitted to a different market, away from the vendee, the delivery would defeat the right of the vendor, for the obvious reason that such a reception of the goods is the only reception thereof contemplated by the buyer.2 So, if the goods be would be considered in the constructive possession of the Vendee, and beyond the vendor's right of stoppage.1
1 Donath v. Broomhead, 7 Barr, 301. See Mottram v. Heyer, 1 Denio, 483, 5 lb. 629.
2 2 Kent, Comm. lect. 39, p. 545; Wright v. Lawes, 4 Esp. 82; Stokes v. La Riviere, 3 East, 397. Here goods were ordered by Messrs. Du-hems of Lisle, and were first sent to their agents in London to be forwarded to their correspondents at Ostend, and by them to be forwarded to Messrs. Duhems. Of course, every agent was an intermediate carrier or forwarder, and the goods were not delivered until they arrived at Lisle, into the hands of the buyer. See, also, Coates v. Railton, 6 B. & C. 422, where goods were purchased by a commission merchant in Manchester, to be forwarded to Lisbon, and it was held that there was no determination of the transitus until they arrived at Lisbon. But in Rowe v. Pickford, 8 Taunt. 83, where a London trader was in the habit of buying goods at Manchester, and allowing them to remain in the wagon office of the defendant, who was a carrier, until they were shipped to another port, away from the vendor, it was held that the transitus was ended by the arrival of the goods at the office of the carrier, because no ulterior place was named to the vendor, and because the carrier became then the special agent of the vendee as warehouseman. So in Scott v. Pettit, 3 Bos. & Pul. 469, goods were ordered of a house in Manchester, and forwarded to the address of the buyer in London, at the Bull and Mouth. Thence, in consequence of general orders, the packer took them to his house, the buyer having no warehouse of his own. Here they were claimed by the vendor; and it was held that the transitus was ended. In Leeds v. Wright, 3 Bos. & Pul. 320, Moisseron, the general agent in London of Legrand & Co. in Paris, purchased goods in their name in Manchester. Moisseron had a general authority to send the goods where he should think it most beneficial. He sent them to a packer, and while in the packer's hands, Legrand & Co. failed, and they were claimed by the vendor; and it was held that the transitus was ended and the delivery placed on board of a ship, the delivery will not be complete, if they are to be transported to the vendee, because an actual possession, subsequent to putting them on board, is provided for in the bills of lading.1 But if they are to be transported to a foreign market, the delivery will be complete, because no other possession than that created by delivery on board of the ship is contemplated, or can be made under the circumstances.2 So, also, where goods are deposited in a warehouse or in any place which can be considered as the warehouse of the vendee, and he have immediate possession of them and control of them, the transitus is determined.3 The place designated to the vendor by the vendee, as the ulterior place, is the point where the transitus ceases, whether the goods be there received personally by the vendee or by his agent.4