is not unpaid may depend upon the balance of a current account; whether the vendee is insolvent may not transpire till afterwards, when the bill of exchange for the goods becomes due; and whether the vendee has or has not indorsed the bill of lading over, is a matter not within the cognizance of the vendor. He exercises his right of stoppage in transitu at his own peril, and it is incumbent upon the ship-master to give effect to the claim as soon as he is satisfied it is made by the vendor, unless he is aware of a legal defeasance of the vendor's claim (54). The vendors' right of stoppage in transitu is subject to the carriers' lien for the freight; and, if the goods be consigned to one person under one contract, the carrier has a lien upon the whole for freight and charges on every part; and a delivery of a part of the goods does not discharge his lien upon the rest without proof of an intention so to do, even as against the right of the consignor to stop in transitu the goods not delivered, but the carrier may charge against those goods the freight on the whole consignment (55). Whether or not there was a right of stoppage in transitu, it is competent for the parties, if the goods have not been actually accepted and have, therefore, not passed as regards the property therein, to rescind the contract of sale and allow the vendor to re-take possession even as against an assignee in insolvency (56). Notice to carrier to stop the goods. Although a notice to stop goods in transitu which are in bond at a customs warehouse belonging to the railway company at a railway depot may be valid if given to the (54) The Tigress 32 L.J. Adm. 97, 101, per Dr. Lushington. (55) Potts v. N, Y. & N.E. Ry. 131 Mass. 455. (56) Mason v. Redpath 39 U.C.R. 157. railway company alone, it is advisable to give notice also to the customs officer (57). A notice of stoppage must give such particulars as are necessary for the carriers to identify the packages it is intended to affect, if they have other goods addressed to the same consignee and, therefore, cannot distinguish them (58). Notice given to the carrier's agent, who has the actual custody of the goods in the regular course of his agency, is good notice to the carrier (59). If notice to stop the goods be served on a shipowner he is under an obligation to send it on with reasonable diligence to the master of the ship, and if the notice arrives before the goods are delivered to the consignee, there is a valid stoppage in transitu; but if notwithstanding the use of reasonable diligence by the shipowner, the goods were delivered before the notice reached the master, the shipowner would not be responsible (60). If the notice be given to the principal when the goods are in the custody of his agent or servant, the notice will not be effectual unless it be given at such a time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to such agent or servant in time to prevent the delivery of the goods to the consignee; and the only duty that the law imposes on the absent principal is to use reasonable diligence to prevent the delivery (61). The right of stoppage in transitu extends not only to countermand delivery to the vendee, but to require (57) Ascher v. G. T.R. 36 U.C.R. 609, 614. (58) Clementson v. G. T.R. 42 U.C.R. 263. (59) Jones v. Earl 37 Cal. 630, 99 Am. Dec. 338. (60) Kemp v. Falk 7 App. Cas. 573, 585. (61) Whitehead v. Anderson 9 M. & W. 518, per Parke, B. re-delivery to the vendor, and the latter may at once. demand the goods (62). Wrongful refusal of carrier to deliver. Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end (63). Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods (64). Re-sale of stopped goods. Where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of stoppage in transitu is defeated, and if such last mentioned transfer was by way of pledge or other disposition for value, the right of stoppage in transitu can only be exercised subject to the rights of the transferee; but in other respects the right of stoppage is not affected by any sale or other disposition of the goods which the buyer may have made unless the seller has assented thereto (65). The contract is not ordinarily rescinded by the mere exercise of the right of stoppage, but if the (62) The Tigress 32 L.J. Adm. 97. (63) Bird v. Brown (1850) 4 Ex. 786. (64) Ex parte Cooper (1879) 11 Ch. D. 68; Jones v. Jones (1841) 8 M. & W. 431. (65) Dixon v. Yates 5 B. & Ad. 313. stoppage is justifiable and the party exercising it resells the goods, the second buyer acquires a good title as against the original buyer (66). If, however, the seller has by his contract of sale expressly reserved a right of re-sale in case the buyer should make default, the sale is then a conditional one, and on its non-fulfilment the defaulter, in case of a re-sale, is liable for the difference and expenses (67). Perishable goods are particularly subject to an alteration in price in a few days or a few hours, and the law follows the usage of trade in sanctioning a re-sale of such goods by the unpaid seller exercising the right of stoppage, and this without any notice to the buyer (68). Where the buyer is bankrupt, and his trustee does not tender the price of the goods to the seller who is in possession of them within a reasonable time, the seller may treat the contract as rescinded without tendering the goods to the trustee, and may prove in the bankruptcy for damages (69). Waiver. The fact that the vendee has given his note or acceptance for the price of the goods does not defeat the vendor's right of stoppage in transitu (70); even although the vendor has negotiated it (71). If the original vendor has notice of the re-sale of the goods by his vendee and at the latter's request consigns them to the sub-purchaser his right of stoppage is (66) Lord v. Price (1874) L. R. 9 Ex. 54. waived (72). Proving a claim for the price of the goods against the estate of the consignee will not deprive the vendors from stopping them in transitu (73). The right of stoppage in transitu will be lost if part delivery of the goods has been made under such circumstances as show an agreement to give up possession of the whole of them. There may be circumstances sufficient to show that there was no intention to separate the part delivered from the rest, and then the delivery of part operates as a delivery of the whole (74); if both parties intended it as a delivery of the whole, then it is a delivery of the whole; but if either of the parties does not intend it as a delivery of the whole, if either of them dissents, then it is not a delivery of the whole (75). British Columbia, N.W. Territories and Manitoba. Under the respective statutes relating to the Sale of Goods in force in the Provinces of British Columbia and Manitoba and in the North-West Territories (76), the law relating to stoppage in transitu has been codified, following closely the form of the Imperial Sale of Goods Act of 1893 (77). Under these statutes it is declared that subject to any provisions of the same, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to (72) Eaton v. Cook 32 Vt. 58. (73) Morgan Envelope Co. v. Boustead 7 Ont. R. 697. (74) Benjamin on Sales, 4th ed. p. 813. (75) Kemp v. Falk (1882) L. R. 7 App. Cas. 586. (76) R.S.B.C. 1897, c. 169; Stat. Man. 1896, c. 25; Con. Ord. N.W.T. 1898, c. 39. (77) 56 & 57 Vict. (Imp.) c. 71. |