« PreviousContinue »
THE UNPAID VENDOR'S EIGHT TO STOP IN TRANSITU MAY BE DEFEATED BEFORE THE TERMINATION OF THE TRANSITUS, BY THE ASSIGNMENT OF THE BILL OF LADING TO ONE, WHO BONA FDJE GIVES VALUE FOR A PROPERTY IN THE GOODS SHIPPED UNDER IT; AND THIS IS THE ONLY WAY IN WHICH THE VENDOR'S RIGHT CAN BE DEFEATED BY THE PURCHASER BEFORE HE OR HIS REPRESENTATIVES TAKE POSSESSION OF THE GOODS.
The enactments commonly called the factors' acts, 4 Geo. 4, c. 83, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39, have considerably enlarged and altered the powers conferred on the holders of bills of lading, delivery orders, and what may be called documents of title to goods, but as it seems those enactments are not applicable to the case of one who is in the possession of the document in the capacity of purchaser, and do not affect the vendor's rights at all. Some remarks upon this subject will be found at the end of this chapter; for the present it will be assumed, that the statutes make no difference, and the inquiry will be as to the effect of those documents at common law.
"Much confusion," said Lord Ellenborough, in Waring v. Cox (1 Camp. 369), "has arisen from "similitudinary reasoning on the subject." This curious phrase seems exactly to express the fact. Bills of lading have been likened to bills of exchange, and delivery orders and dock warrants have been likened to bills of lading, and the law applicable to any one class of such documents, has been supposed to extend by analogy to the others, which is the case only where the distinctions between these different kinds of documents are not material; and the effect of the assignment of an interest in the goods, which may accompany the assignment of the bill of lading, has not always been distinguished from the effect of the assignment of the bill of lading itself.
First, it is to be observed, the purchaser who has not obtained possession of the goods, may, as soon as the bargain and sale is complete, transfer his rights in the goods, whether there exist a bill of lading or not. But when no document of title exists, he can transfer no right greater than that which belongs to himself. As has been already shewn, ante, part 2, chap. 3, the purchaser has, from the moment the bargain and sale is complete, the general right of property, subject to the vendor's rights, and he may exercise every right of property consistent with the vendor's rights. He may sell the goods, subject to the first vendor's rights, and if he does so, the property is transferred to the second purchaser, by the second bargain and sale, without any delivery of possession.
But though the second purchaser acquires by his bargain and sale the legal property in the goods, and every right which his immediate bargainor had in the goods, yet (if there be not an assignment of a bill of lading) he acquires no greater right; he takes the property subject to the same restrictions that his immediate vendor held it under.
In Dixon v. Yates (a), in 1835, Dixon sold goods to Collard, who accepted goods for the price, and Collard, whilst the bills were still running, sold the goods to subpurchasers, who paid him the price, and afterwards Collard became insolvent. The King's Bench decided, that one of the subpurchasers, Bond, who had taken possession of a part of the goods, whilst Collard was solvent, was entitled to keep that part of the goods, for he had taken possession of them whilst Collard had a right to take possession, but that none of the subpurchasers had a right to take the goods, which at the time of the insolvency, remained undelivered, for that Collard's right to take possession was defeasible on his insolvency, and though they had bought from him, and bond fide paid him whilst he was solvent, yet they did not thereby acquire any right more extensive than his, that is to say, a right defeasible on his insolvency, before he acquired possession.
In Craven v. Ryder (&), in 1816, it was decided, by the Common Pleas, that the vendor's rights were not destroyed by a subsale and payment, but there the defendants were acting contrary to their own written
acknowledgment, and it may, perhaps, be thought that circumstance was the ground of the decision.
In Nix v Olive (a), in 1805, the vendors Abbot and Co., had sent the purchaser Fox, an unindorsed bill of lading. The goods arrived, and Fox sold them to Nix, the plaintiff, who did not obtain possession. Fox became insolvent, and the defendants, who were agents of Abbot and Co., sold the wine. Nix brought trover, and Lord Ellenborough decided, that Abbot and Co. still had the right to stop in transitu. It is to be observed, that there did, in that case, exist an unindorsed bill of lading, but that could not prevent the property being transferred from Fox to Nix by the subsale, see Nathan v. Giles (5 Taunt. 558).
In Akerman v. Humphrey (b), in 1823, the Common Pleas decided that a sale by the purchaser, accompanied by a delivery of the shipping note, did not put an end to the vendor's rights to stop in transitu.
These authorities are sufficient to overrule what seems to have been the opinion of Buller, J. expressed in his celebrated argument in Lickbarrow v. Mason, (c) in the House of Lords, in which he contends that ;— "goods can never be stopped in transitu after they "have been sold and paid for, or money advanced "upon them bond fide, and without notice;" indeed, that opinion seems to have been overruled in that case, and has never since been acted upon. It may therefore
(a) Nix v. Olive, Abbott, 394.
be asserted, that a mere sale by the purchaser does not divest the vendor's rights when there is no assignment of a bill of lading. And a pledge of the goods cannot have more effect than a sale of them, even if a pledge of goods unaccompanied by something equivalent to a delivery of possession, passes any legal property in them which is somewhat doubtful.
It is clear, also, that the purchaser, if he has the right of possession, may give a third person authority to take possession of the goods without conferring on him any right of property whatever in them. If the carrier, or other holder of the goods, delivers them to such a person, it is a delivery to the purchaser whose agent that person is, and such a delivery is for every purpose the same as a delivery to the purchaser himself. If the carrier refuses to deliver the goods to the agent, it is in general the same thing (if there be due notice of the authority) as if he had refused to deliver them to the purchaser himself, and if the refusal be not justifiable, the purchaser has the same remedy as if the refusal had been to him in person. But the agent has no right of action for such a refusal. He has no right of property or possession in the goods, and can maintain no action in his own name for any wrong done to the right of possession, or property of his principal the purchaser. In this respect, one who has merely got authority to receive the goods, differs from a subpurchaser; for the subpurchaser having himself acquired the legal rights of property and possession, such as they belonged to his immediate vendor, i. e. vested though defeasible, may maintain