§ 1045. So, also, where goods are landed on a wharf, at a distance from the vendee's place of business, yet if it be proved that the wharf is the place where the vendee usually received goods, and that after they were landed neither the wharfinger nor any person acting for him or the carriers had any charge of the goods, but that the vendee and other persons, whose goods were landed at the wharf, were accustomed to receive them there, and to transport them to their place of business for themselves, and if it also appear that there is no lien on the goods for freight or charges, they complete. See Hunt v. Ward, cited 3 T. R. 467; Dixon v. Baldwen, 5 East, 175; Hunter v. Beal, cited 3 T. R. 466; Stubbs v. Lund, 7 Mass. 453.
1 Newhall v. Vargas, 13 Me. 93; Covell v. Hitchcock, 23 Wend. 611.
2 Stubbs v. Lund, 7 Mass. 453; Fowler p. Kymer, cited in Bohtlingk v. Inglis, 3 East, 396. See Van Casteelr. Booker, 2 Exch. 708; Turner v. Trustees of Liverpool Docks, 6 Exch. 543; 6 Eng. Law & Eq. 507; Wait v. Baker, 2 Exch. 1; Aguirre v. Parmelee, 22 Conn. 473; Jenkyns v. Brown, 14 Q. B. 496; Ellershaw v. Magniac, 6 Exch. 570, note; Cowas-jee v. Thompson, 5 Moore, P. C. 165.
3 Allan v. Gripper, 2 Cr. & Jerv. 218; Long on Sales, Rand's ed. 331, and cases cited; Conard v. Atlantic Ins. Co., 1 Pet; 386; Foster v. Framp-ton, 6 B. & C. 107; Barrett v. Goddard, 3 Mason, 107; Mottram v. Heyer, 1 Denio, 483.
4 Rowe v. Pickford, 8 Taunt. 83; Donath v. Broomhead, 7 Barr, 301; Frazer v. Hilliard, 2 Strob. 309. See Hays v. Mouille, 14 Penn. St. 48.
§ 1046. A constructive possession may, also, be acquired by a symbolical delivery; as by affixing a mark, taking samples, delivering the key of a warehouse, or a bill of parcels. But if any thing remain to be done by the consignor, the delivery will be incomplete, and, of course, the transitus will be undetermined.2 So, also, where the seller has completed his duty, an actual delivery of a part is a constructive delivery of the whole, if the contract be entire, or if it be the intention to transfer the whole thus symbolically.3 The presumption, however, is, that the part delivery is intended as a delivery of the whole, but it may be rebutted.4
§ 1047. A constructive delivery may be implied, so as to destroy the vendor's right of stoppage, by the exercise of any acts of ownership by the vendee adverse to the vendor's right. Thus, if the consignee, before the goods arrive at their place of ultimate destination, postpone the delivery,5 or resell them with the consent of the vendor,6 the vendor loses his claim. So, also, if goods be delivered into a warehouse, owned by a third person, to whom the vendee pays rent, it is a delivery so as to defeat the right of the vendor.7
§ 1048. The question whether a bill of lading which contains the words "consignee or his assigns " is of a negotiable nature, so as to pass the possession, without a delivery of the goods, has been much discussed, and particularly in the case of Lickbarrow v. Mason.1 The law, as far as it is settled, seems to be that a bill of lading is in a limited sense (for the transfer of title) negotiable, but that its mere delivery does not determine the transitus. If it be assigned to an indorsee for value, without notice, the transitus is determined, and the right of stoppage is gone.2 So, also, a bond fide assignee of a bill of lading may stop the goods while in transitu, upon the insolvency" of his assignor, the first vendee, and sue in his own name the wharfinger, who refuses to deliver.3 A bill of lading signed by the master, however, is not conclusive evidence that the goods were actually shipped, as between a bond fide indorsee for value and the ship-owner.4
1 Sawyer v. Joslin, 20 Vt. 172. See Chickering v. Fowler, 4 Pick. 371.
2 Ellis v. Hunt, 3 T. R. 464; Wright v. Lawes, 4 Esp. 82; Foster v. Frampton, 6 B. & C. 107; Busk v. Davis, 2M. & S. 397; 5 Taunt. 622, n.; Harman v. Anderson, 2 Camp. 243.
3 Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 1 Bos. & Pul. N. R. 69; Miles v. Gorton, 2 Cr. & M. 512; Bunney v. Poyntz, 4 B. & Ad. 568.
4 Betts v. Gibbins, 4 Nev. & Man. 76. 5 Foster v. Frampton, 6 B. & C. 109.
6 Stoveld v. Hughes, 14 East, 308, 312; Hawes v. Watson, 2 B. & C. 540, 543.
7 Wright v. Lawes, 4 Esp. 82.
§ 1049. The effect of a stoppage in transitu is not to rescind the contract of sale, but to reinstate the parties in the same position as that in which they were before the vendor parted with the possession.5 But if, during the passage, the vendee have incurred expenses thereon, as for freight and charges, he would have a claim therefor against the vendor, and a lien also on the goods.6
1 This celebrated case came up first in the King's Bench, and the doctrine stated in the text was held. The defendant appealed to the Exchequer Chamber, and, in an elaborate opinion delivered by Lord Loughborough, the decision was reversed. The case was then carried to the House of Lords, where the judgment of the King's Bench was affirmed, and a most luminous opinion was delivered by Mr. Justice Buller; a new trial was, however, awarded, and a special verdict taken. The case was sent back again to the King's Bench, where the judges declared that their opinion was unchanged. See the report of this case in 2 T. R. 63; 1 H. Bl. 357; 6 East, 21, note; 2 H. Bl. 211; 5 T. R. 367, 683. See, also, Code de Commerce, tit. Revendication; Cuming p. Brown, 1 Camp. 104; Waring v. Cox, 1 Camp. 369; Coxe v. Harden, 4 East, 211; McEwan v. Smith, 2 H. L. C. 309. The same rule obtains in the United States. Griffith v. Ingledew, 6 Serg. & R. 429; Peters v. Ballistier, 3 Pick. 495; Walter v. Ross, 2 Wash. C. C. 283; Conard v. Atlantic Ins. Co., 1 Pet. 386.
2 Gurney v. Behrend, 3 El. & B. 622; 25 Eng. Law & Eq. 128.
3 Morison v. Gray, 9 Moore, 484.
4 Berkley v. Watling, 7 Ad. & El. 29.
5 Newhall v. Vargas, 15 Me. 321; Hodgson v. Loy, 7 T. R. 440; Tucker v. Humphrey, 4 Bing. 516.