
    Henry T. Hills et al. plaintiffs and appellants, vs. James Lynch, sheriff, &c. defendant and respondent.
    1. The selection hy a purchaser, of a particular carrier, of the goods purchased, necessarily destroys all right on the part of the vendor to employ any other.
    2. The mere right of accepting or rejecting undelivered merchandise, and thus completing or repudiating a contract of purchase, is not a subject of levy or sale.
    3. Where goods purchased, are directed hy the purchaser to be delivered to a particular carrier, for transportation, but hy mistake of the cartman employed to cart them, and contrary to his instructions, they are delivered to a different carrier, and while in possession of the latter are levied upon by the sheriff, under execution against the purchasers, the goods will be regarded as being unlawfully in the possession of such carrier, when so seized; and the vendors may reclaim them, in order to forward them by the proper method of transmission, which can alone bind the purchasers.
    4. Such a delivery to the carrier is no more a delivery to the purchasers than a deposit of the goods with any other person, to be delivered to the pnrchasers.
    ' The carrier is at most the vendor’s agent, and cannot refuse to re-deliver the goods to them on demand, at any time before they reach the purchaser’s possession.
    B. There is no principle which will convert a carrier, not only not selected by a purchaser, but entirely different from the one designated by him, into his agent, to accept the delivery of goods for him. Per Robertson, Oh. 3.
    
    (Before Robertson, Ch. J. and Moneli and Garvin, JJ.)
    Heard October 11, 1864;
    decided December 31, 1864.)
    Action to recover the possession of personal property alleged to have been unlawfully taken from the plaintiff and carried away and detained by the defendant. The defendant justified the taking, as sheriff, under and by virtue of an execution issued against William J. Dunlop and Marvin 0. Dutton, in an action brought against them, in the Supreme Court, by William Graham and James Aitken; the defendant alleging, in his answer, that the property in question belonged to the said Dun-lop and Dutton. The action was tried before the Hon. O. L.Monell, one of the justices of the court, on the 6th day of May, 1864, without a jury, a trial by jury being waived, by oral consent, in open court, and entered in the minutes. The court found the following facts; the same being admitted by the written stipulation of the respective parties, viz :
    
      First. That at the time hereinafter mentioned, the plaintiffs were wholesale jobbing merchants in dry goods, in the city of New York. On or about the 15th day of September, 1862, the goods, which are the subject ¿f this action, were owned by the plaintiffs, as copartners, and were sold by them for net cash, meaning payable in thirty days, to Dunlop and Dutton, composed of William J. Dunlop and Marvin 0. Dutton, of Lock-port, N. Y., and were charged to them, on the books of the plaintiffs.
    
      Second. That at the time of the purchase nothing else was done by the plaintiffs or Dunlop or Dutton, except that the plaintiffs and Dunlop & Dutton selected the goods, and agreed upon the price, and Dunlop & Dutton directed the said goods to be sent by the plaintiffs to the People’s Line of steamboats, on the Hudson river, to be forwarded to them by the said steamboat company, and the New York Central Railroad Company.
    
      Third. That, afterwards the goods were packed in two cases, and marked and directed by the plaintiffs to Dunlop & Dutton, at Lockport, N. Y., and a bill or invoice of the goods, charging the same as sold by said plaintiffs to Dunlop & Dutton, including the charge for the cartage to the steamboat, was by the plaintiffs placed in one of the cases of goods to be. forwarded to the said Dunlop & Dutton, on the same day on which said goods were packed, as aforesaid.
    
      Fourth. The cartman received from the plaintiffs the goods, at the store of the plaintiffs, in the city of New York, marked . or addressed Dunlop & Dutton, Lockport, N. Y., with instructions by the plaintiffs to deliver the same on board the People’s Line of steamboats, but, instead of taking such goods to the People’s Line of steamboats, he, in violation of said instructions, delivered the same at the office of the Hudson River Railroad Company, in the city of Hew York, for transportation by railroad company to Dunlop & Dutton, at Lockport, Hew York, instead of the People’s Line of steamboats, and received from said Hudson River Railroad Company a receipt, prepared before hand by the plaintiffs, in duplicate, which he delivered to the plaintiffs on the same day, and of which the following is a copy:
    “ Hew Yoke, Sept. 15th, 1862.
    Received from Messrs. Hills, Vedder & Coi, in good order, oh board the People’s Line and' H. Y. C. Rd. for Lockport, H. Y., the following packages :
    Marked Dunlop & Dutton, Lockport, H. Y.
    (2 cases dry goods. One duplicate signed. Bill.”)
    The said receipt being signed by the said railroad company, without authority, from the said People’s Line of steamboats.
    
      Fifth. On -the 15th day of September, 1862, the execution referred to, in the answer, was duly issued, and delivered to the defendant, and based upon the judgment, and in form and substance, and in all respects-as set forth in said answer, and on the 15th day of September, 1862, the defendant, as sheriff of said city and county of Hew York, acting under said execution, levied upon and seized the said cases of goods, while they were on the cars of the Hudson River Rail Road Company, at 31st street,‘in the city of Hew York, on route to Lockport, via Albany, after they had been transported by said railroad company from their depot at Chambers street, where they had been received from said,plaintiffs to 31st street.
    
      Sixth. The said Dunlop & Dutton have never paid for the said goods, nor any part of them, nor given any written obligation .so to do. The defendant, as sheriff, sold the said goods under the said execution.
    
      Seventh. On the 1st day of October, 1862, the plaintiff learned from Dunlop, & Dutton that the said goods had not reached Lockport, and they demanded the goods of the defendant, who refused to deliver the same to them.
    
      Eighth. The value of the said goods, upon which this-aetion was brought, was one hundred and ninety-two dollars and thirty-eight cents, ($192.38.)
    And, as a conclusion of law from the said facts, the judge found that the plaintiffs were not entitled to maintain this action, and that their complaint herein should be dismissed upon the merits, with costs to the defendant.
    Judgment of dismissal being entered accordingly, the plaintiffs appealed.
    
      T. Darlington, for the appellants.
    The facts in this case being established, the question as to whether the plaintiffs are entitled to recover becomes a question of law merely, and turns substantially upon-the question whether there had been such a delivery by the plaintiffs of the goods in question to Dunlop & Dutton, and such an acceptance thereof by said Dunlop & Dutton from the plaintiffs, prior to the levy thereon by the sheriff, as to vest the title in the said Dunlop & Dutton. The inquiry therefore will be, who had the title to the goods at the time of seizure by the sheriff ? The goods were of the value of $192.38. The plaintiffs insist that the alleged sale by them to Dunlop & Dutton was void under section 3, title 2, chap. 7, part 2, Revised Statutes ; and that the goods could not, under the circumstances, become the property of Dunlop & Dutton until safe arrival at Lockport, and actual acceptance by them there.
    I. No note or memorandum of the contract in writing has been subscribed by either of the two parties to the contract. (Davis v. Shields, 26 Wend. 341.)
    II. The buyers did not at the time pay, nor have they since paid, any part of the purchase money.
    III. The plaintiffs have never delivered the goods in question to Dunlop & Dutton. The goods never passed out of the possession of the plaintiffs or their agents. Dunlop & Dutton having directed the plaintiffs to convey the goods to them by “ the' People’s Line of steamboats on the Hudson river,” the plaintiffs disregarded and neglected that direction, and delivered them to the Hudson River Railroad Company for conveyance by land. Had the plaintiffs delivered the goods to “ the People’s Line,” it would perhaps have amounted to a delivery to the agent of Dunlop & Dutton, and passed the title to them, but by neglecting and disobeying the instructions and delivering the goods to the Hudson Eiver Eailroad Company, they made that company their own agent, and took upon themselves the burden of delivering the goods to Dunlop & Dutton, at Lock-port. The delivery to “ the People’s Line” was a condition precedent to transfer of the title.
    1. The mere making and setting aside of goods sold, with' the view of appropriating them to the vendee, and in compliance with his request, is not a sufficient delivery under the statute, if the contract be by parol. (2 Starkie on Evidence, 611. Story on Sales, § 279. Astley v. Emery, 4 Maule & Selw. 262. Anderson v. Hodgson, 5 Price, 630. Howe v. Palmer, 3 Barn. & Aid. 321.)
    2. A true test of the title to the goods in question will be found in investigating the inquiry, “ Whether the plaintiff can now recover against Dunlop & Dutton, for the price of the goods ?” Clearly they cannot. Because they have not delivered the goods. The only cases in which a delivery to a carrier have been held to be a delivery to the vendee are the following : (a.) Where a particular carrier is agreed upon by the parties, or named by the purchaser, and the goods delivered to him. (b.) Where no agreement is made nor any direction given by the purchaser to’ a particular carrier, and the goods are forwarded in the usual way, (though it is doubtful whether recent cases go as far as this.) (c.) Where there is a general order for conveyance by carrier, no carrier being specifid, and the conveyance adopted is the usual or only one, or that by which goods have previously been sent to the same order, (d.) Where the vendee assents to the mode adopted. In all these cases, the goods are at the risk of the vendee, and an action against hitáis for goods sold and delivered, because the carrier is the agent of the vendee. But if the goods be directed to be delivered to one carrier, and are actually delivered to another, or if the rections of the vendee are disobeyed in any material respect, the reason of the rule fails because the carrier cannot be considered the agent of the vendee. (Story on Sales, § 276. Blackburn on the Contract of Sale, 27-41. Vale v. Bayle, 1 Cowp. 294. Clarke v. Hutchins, 14 East, 475. Hanson v. Armitage, 5 Barn. & Ald. 557. Anderson v. Hodgson, 5 Price 630. Astley v. Emery, 4 Maule & Selw. 262. Hart v. Bush, 1 Ellis, Bl. and Ellis, 494. Norman v. Phillips, 14 Mees. and Wells. 276. Nicholle v. Plume, 1 C. & P. 272. Farina v. Home, 16 Mees. and W. 119. Meredith v. Meigh, 2 Ell. and Bl. 364, (overruling Hart v. Satley, 3 Camp. 528.) Whiting v. Farrand, 1 Conn. 60. The Frostburg Mining Co. v. New England Glass Co., 9 Cushing, 115.) 3. A further test will be found in investigation of the inquiry, “ Suppose these goods had been lost in transitu by negligence of the Hudson River Railroad Co., could Dunlop & Dutton have recovered the value of the goods from the company ?” Clearly not. If a vendor takes upon himself to deliver goods to the vendee, he stands to all risks, though if the vendee order a particular mode of conveyance, and that mode is followed, the vendor is excused. (Angell on Carriers, secs. 496 and 498. Coats v. Chaplin, 3 Ad. and Ell. N. S. 483. Coombs v. Bristol R. R. Co., 3 Hurl. and Norm. 510. Selwyn’s Nisi Prius, (ed. 1831,) p. 518.)
    IY. There has been no acceptance and receipt of these goods by Dunlop & Dutton. This point is virtually included in the third point; for as it has been demonstrated that there has been no delivery to Dunlop & Dutton, it follows that there can have been no acceptance by them. The general rule is this : To bind the vendee, the acceptance must be final, complete and irrevocable, and the subject matter must have come into the absolute possession of the purchaser or some one authorized finally to receive it for him. (Jordan v. Norton, 4 M. and W. 153. Bill v. Bament, 9 Mees, and Wels. 36. Dole v. Stimpson, 21 Pick. 384. Parker v. Wallis, 5 Ell. Bl. 21. Holmes v. Hoskins, 9 Exch. 753. Shindler v. Houston, 1 Comst. 261.
    
      
      Outwater v. Dodge, 6 Wend. 397. Kent v. Hutskinson, 3 Bos. & Pul. 233.)
    Y. Even if the goods had reached their destination, Dunlop & Dutton were • not obliged to receive them, inasmuch as the plaintiffs had exceeded their authority as agents by sending the goods by the Hudson river railroad, where additional.expenses would have been incurred, instead of by the steamboat as directed. (Fleeman v. McKean, 25 Barb. 474. Smith v. Lynes, et al., 1 Seld. 41. Corning v. Colt, 5 Wend. 253. Vincent v. Conklin, 1 E. D. Smith, 203. Bruce v. Pearson, 3 John. 534. N. Y. F. I. Co. v. DeWolf, 2 Cowen, 56. Chapin v. Potter, 1 Hilton, 366.)
    It is argued by the defendant:
    ■ That as Dunlop & Dutton could have accepted the goods at the 31st street station, and waived the nondelivery at the “ People's Line,” and as their acceptance would have completed the sale to' them, therefore the sheriff could receive the goods for them, and thus make the goods the property of the said Dunlop & Dntton, and then, as their property, could properly levy on the goods. The fallacy in this argument is, that it assumes that the sheriff could make a binding contract, for Dunlop & Dutton when they had failed to do so. The sheriff's acceptance of the goods would not have enabled us to maintain an action against Dunlop & Dutton on this void contract. The sheriff was the agent of Graham and Aitken, the plaintiffs in the execution; He was acting for Graham and Aitken, in the seizure of the goods, and had no authority over the goods prior to the instant when the execution was levied, and then by virtue thereof only. The doctrine is novel, that the sheriff in levying an execution can act as the agent of both plaintiff and defendant, pt least on the method suggested.
    Again the defendant argues :
    That the cartman who took the goods from the store of the plaintiffs was the agent of Dunlop & Dutton, inasmuch as he was to be paid by them, and that therefore when the plaintiffs delivered the goods to the cartman, with directions to deliver to “ the People's Line,” they had carried out their instructions from Dunlop & Dutton, and that delivery to the cartman was therefore delivery to Dunlop & Dutton. ' This argument is entirely fallacious, inasmuch as it assumes that the cartman was the agent of Dunlop & Dutton. In fact, he was the servant of the plaintiffs, and their agent. If the instructions of Dunlop and Dutton had been to deliver to a cartman with instructions to the cartman to deliver to “ the People’s Line,” the argument might hold, but their instructions to the plaintiffs were “ to deliver to the People’s Line,” and this the plaintiffs were bound to do, before they or any third person could claim that the goods had been delivered to Dunlop & Dutton.
    
      A. J. Vanderpoel, for the respondent.
    I. The title to the goods was in Dunlop & Dutton, the execution debtors at the time of the levy. 1. The goods had been sold, after being selected by the seller and purchaser, leaving no question of identity undetermined. The price had been agreed upon, and no question was made of non-compliance with the terms of sale. They were charged on the plaintiff’s books to the sellers, and with the bill packed in a case whereon the purchasers’ names and residence were marked, who requested shipment by the People’s Line. 2. The plaintiffs delivered the goods to the carrier employed at the direction and expense of the purchasers. The sellers did not intend to retain any possession or control of the goods, but designed to part with them and to deliver them to the purchasers’ agents. 3. Dunlop & Dutton have not objécted that the title of the goods did not pass to them. 4 The cáse does not present a point of stoppage in transitu.
    
    II. As matter of law, the plaintiffs cannot take advantage of the fact, that a mistake was made by the person employed at Dunlop & Dutton’s expense, as to the line by which the goods were to be transported.
    1. The delivering in a particular manner, or the shipment by a special conveyance, was not a condition precedent to the vesting of the title to the goods in the vendees. In this case the seller acted merely as agent of Dunlop & Dutton in making the shipment.
    2. Even if it had been a condition that the plaintiffs should deliver at a certain place, and they, intending to deliver, erred as to the place, it would only lie in the mouth of Dunlop & Dutton, or their successors in interest, to raise the objection—■ the plaintiffs cannot avail themselves of it. After placing these goods on board of the cars, they could not refuse to complete the sale.
    3. Dunlop & Dutton were at liberty, in case of a loss of the goods after they were placed on the cars, to sue the carrier and recover for the loss. The plaintiffs in this action could not have maintained suit against the carriers for the loss. (People v. Haynes, 14 Wend. 546. Terry v. Wheeler, 25 N. Y. Rep. 520, 524. Dutton v. Solomonson, 3 B. & P. 582. Dyer v. Forest, 2 Abb. 282.)
    III. Dunlop & Dutton could not defend an action brought by Hills, Vedder & Co. for the price of the goods : the goods came to the use of Dunlop & Dutton.
    
    IV. If Dunlop & Dutton, or their conventional transferee, could accept the goods at any point, or could waive conditions (if the purchase had been conditional,) we submit that the sheriff, acting under process, (who is a quasi transferee by operation of law,) could accept or waive in the same manner. He is the representative of Dunlop & Dutton, and can act in their stead. (Beals v. Allen, 18 John. 363.)
    V. It nowhere appears that Dunlop & Dutton have disaffirmed or objected to the' sufficiency of the delivery. The plaintiffs intended to part with the possession and title. The goods went to the use and benefit of Dunlop & Dutton.
   By the Court, Robertson, Ch. J.

It fully appears from the facts found by the decision of the court at special term in this case, that nothing remained to be done to separate and determine the subject of the agreement to sell, or fix its price, as well as. that no act of acceptance or dominion by the vendees, such as marking or the like, had been performed. There is also no question made of their solvency, so as to justify a stoppage in transitu; so that neither the delivery of such goods, nor the right of the plaintiffs to claim them, can be governed by any of such considerations. And the only questions left are whether the delivery by the plaintiffs to a carrier different from the one selected by the buyers was a delivery to them, and whether the right of the latter to elect to accept such goods as delivered to them was transferred to the sheriff by the judgment and execution against them and levy by him.

The principle on which the delivery of goods by a vendor1 to a carrier to be transported to a distance and delivered to a vendee is considered as made to him, if it be so, can only rest on the presumption that the contract in such cases is something more than the mere sale and delivery of the goods; that it involves an agreement by the vendor to forward them and to select the agent by whom they are to be carried, who thus becomes the agent of the vendee to receive them. Where no restrictions are laid upon the vendor, he would in such case have a right to forward in the ordinary mode and select the usual common carriers engaged in transporting on the usual route for reaching their destination. There can be no delivery except in the mode fixed by the buyer or to his agent, or by his acceptance of the goods delivered. (Hague v. Porter, 3 Hill; 14Í.) Mere words are not sufficient, without some act either enabling the vendee to get possession of the goods or amounting to a transfer either of possession or evidences of title and its acceptance. (Shindler v. Houston, 1 N. Y. Pep. 261.) The mere setting apart goods in the vendor’s possession is not sufficient, (Id.;) and any decisions apparently to the contrary, (Brewer v. Salisbury, 9 Barb. 511, Dows v. Morewood, 10 id. 183,) must be considered as overruled. Even delivery to a carrier selected by the vendee has been held in England not to be sufficient to constitute a delivery to him, (Meredith v. Meigh, 2 EL & Bl. 364; Holmes v. Hoslcins, 9 Exch. 753 ;) or- even a delivery at a particular place selected by the vendee, where a previous separation of the articles was necessary. (Hunt v. Hecht, 8 Exch. 814.)

The delivery by the plaintiffs to the Hudson River Railroad Company was no more than the deposit of the goods with any other person, to be delivered to the purchasers, would have been. Such company was the plaintiffs’ agent, and could not refuse to redeliver such goods to them on demand at any time before they reached the purchasers’ possession. The selection of the People’s Line of steamboats as the carrier, by the purchasers, necessarily destroyed any right on the part of the plaintiffs to select any other. It is even more than doubtful whether the vendees could have recovered for any loss of the goods by such carriers, although théy might have accepted and ratified such delivery. (Coombs v. Bristol R. R. Co., 3 Hurl. & Norm. 510. Coats v. Chaplin, 3 Adol. & El. (N. S.) 483. Angell on Carriers, §§ 496, 498.) In order to change the title to chattels, the delivery of them to the vendee or his agent duly authorized by him to receive them, whether actual or symbolical, must be final and irrevocable, saving the right of stoppage in transitu, and the acceptance must be complete and unconditional. (Jordan v. Norton, 4 Mees. & W. 153. Bell v. Bament, 9 id. 36. Parker v. Wallis, 5 Ell. & Bl. 21. Kent v. Huskinson, 3 Bos. Pul. 233. Dole v. Stimpson, 21 Pick. 384.) I am not aware of any principle which could convert a carrier, not only not selected by a vendee, but entirely different from the one selected by him, into an agent for him, to accept the delivery of goods.

Nor do" I see how either the plaintiff in the judgment against the vendees, or the sheriff (the defendant) can be converted into their .agent to accept a delivery of the goods at the Hudson river railroad depot instead of on board one of the line of . steamboats. Until the acceptance of the goods by the buyers the bargain was not complete, and they could at any time have rejected the goods. None of their creditors could complete for them a mere inchoate purchase. The mere right of accepting or rejecting undelivered merchandise, and thus completing or repudiating a contract of purchase, was not a subject of levy or sale. The seizure by the defendant could not give the plaintiffs a right of action against the vendees for goods sold and delivered ; in a case where such goods were delivered not to any agent of theirs, constituted such expressly' or by implication of law, but in opposition to their express instructions.

The seizure by the defendant cannot be justified, therefore, ■by any supposed actual delivery of the goods to any agent of the vendees, or inchoate delivery to them, or'any parting with the possession by the plaintiffs with intent to transfer the title and an acceptance thereof by the defendant as the agent of such vendees. But in fact the delivery of the goods to the railroad company was by mistake and contrary to the instructions of the plaintiffs to their cartman who carried them there. They were, as ■ regarded the plaintiffs, unlawfully in the possession of the company when seized, and the plaintiffs had a right to reclaim them in order to forward them by the proper means of transmission, which could alone bind the vendees. The defendant had no more right to take them in the depot, because it was that of a common carrier, than in any store • in the city, in which such cartman might have thought proper to deposit them.

The question may still remain, however, how far the cart-man who received the goods to take to the steamboat, may be considered the agent of the vendee, or the common agent of buyer and seller, in transporting the goods to such steamboat. The plaintiffs seem to have treated him as an agent .of the vendees, by charging the expense of cartage to them in the bill- inclosed with the merchandise. Transportation either to a railway or a steamboat necessarily involved the employment of a cartman. The one employed, wilfully or accidentally took the goods to the wrong carriers ; the direction to him remains unrevoked, and they may be considered in law as still on their way to the right destination. Some custom may govern the cartman’s relation to the parties., But as the case stands, it must go back for a new trial. Judgment must be given accordingly.

Monell, J. (dissenting.)

Ho question arises in this case upon the right of stoppage in transitu. Such right can only be exercised upon the insolvency of the vendees. It is in the nature of an equitable lien for the unpaid purchase money of goods, under which the vendor may repossess himself of the goods, upon the insolvency of the vendee ; it cannot be exercised at the mere caprice of the vendor when no such insolvency exists. (The Constantia, 6 Rob. Adm. 321.) Hor is there any question arising under the statute of frauds. That statute is invoked only when there is a breach of a contract of ■sale, by the vendor in refusing to deliver, or of the vendee in refusing to accept. A lien upon the goods for the price, exists in favor of a vendor so long as the goods remain in his possession. The lien ceases when the goods have passed out of the possession of the vendor.

The only question in this case, therefore is, whether at the time of the levy the goods were out of the plaintiff’s legal possession. Within the decision in People v. Haynes, (14 Wend. 546,) the sale was complete without an actual delivery to the purchasers. In that case, the goods were selected by the purchasers, and directed to be forwarded to hiip at Boston, and to be sent on board the steamboat. The Chancellor says, (p. 563 :) “ The delivery of the hox on board the boat, to be sent on to the vendee’s residence, and detained there according to the directions on the box itself, was a valid delivery- of the goods, so as to divest the vendors of the possession, as well as of the title; leaving them the mere right of stoppage in transitu.”

Except as affected by the statute of frauds, a bargain and sale of goods, without delivery, is sufficient to divest the vendor’s title and vest it in the purchaser. If the sale be for cash, the vendor has a lien for the price, so long as the goods remain in his possession, (Story on Gar. § 499,) but, where the sale is upon a credit, and there is no agreement in respect to the delivery or possession of the goods, the purchaser has at once a complete right, not only of property, but of possession. (1 Pars. on Cont. 440.)

Delivery of goods to the vendee, either actual or construetive, will not take the case out of the statute of frauds, as respects the vendee. There must he an acceptance of the goods by him. The seller is bound by his delivery, and cannot reclaim his goods ; but the buyer has his option to keep the goods, and pay for them, or return them and not pay. (2 Pars, on Cont. 322.)

The distinction between a lien for the purchase price of goods, and the right of stoppage in transitu is clear. The former exist so long as the goods remain in the seller’s possession, and where the payment of the price is a condition precedent; no lien exists when the sale is on credit, and it ceases the moment the goods have passed out of the vendor’s possession. (Story on Cont. § 500.) The right of stoppage in transitu continues until the goods have arrived at their place of destination, and been transferred to the actual possession of the buyer. Possession is the test of a right of lien. Non-delivery to the vendee is the test of a right of stoppage in transitu. Although the right of stoppage continues until the goods have reached their destination, yet if the vendee meets them upon the road, and takes them into his own possession, the right of stoppage is lost. (Mills v. Ball, 2 B. & P. 457.) The right to intercept the goods in their passage is also affirmed in Oppenheim v. Russell, (3 B. & P. 42,) where Chambre, J. says: “ If goods are intercepted before the consignor has exercised his right of stoppage in transitu, and the purchaser takes an actual delivery from the carrier before the goods get to the end of their journey, such a delivery to him will be complete.”

. As between the plaintiffs and Dunlop & Dutton, the sale was'eomplete. The goods were selected and the price agreed upon. Nothing remained to be done, except to deliver. The sale was on a credit. The goods were put in boxes, the boxes marked and directed to Dunlop & Dutton, at Lockport, and delivered to a eartman to be forwarded to their destination.

There is no doubt, had the boxes, been delivered to the People’s line of steamboats, instead of to the Hudson river railroad, that the delivery would have been, complete. (People v. Haynes, supra. Waldron v. Romaine, 22 N. Y. Rep. 368.) The title, not only, but the possession also, would have passed to the purchasers, the plaintiffs’ lien for the price would have been lost, and they would have been left with a bare right of stoppage in transitu ; and such a delivery would have been sufficient to have taken the case out of the statute of frauds.

The cartman who received the boxes, from the plaintiffs, delivered them, in violation of their directions, to the railroad company, instead of to the steamboat line. The cartman was selected by the plaintiffs, but the cartage was charged to Dun-lop & Dutton. When the boxes were delivered to the cart-man they passed out of the plaintiffs’ possession. The lien for the purchase money was gone, and the sellers could not reclaim their goods, except under the right of stoppage in transitu. And this is so, although the purchasers were not bound to accept, and might refuse to accept. For the purpose of changing the actual possession, the delivery to the cartman was sufficient. Per Tracy, senator, (People v. Haynes, supra, 565.)

If the question arose between Dunlop & Dutton and the plaintiffs, and the former were seeking to compel a delivery of the goods bargained and sold, it might be that the delivery to the cartman, or the delivery by him, in opposition to the plaintiffs’ direction, would not take the case out of the statute. But no such question arises here, and I think there is no doubt that Dunlop & Dutton could have intercepted the goods at 31st street, and accepted a delivery there, even against the consent of the carrier. (Mills v. Ball, Oppenheim v. Bussell, supra.) And such acceptance would have taken the case out of the statute. But the statute of frauds is not involved. The simple question is, whether the delivery to a cartman, and a deposit by Mm, with the railroad company, although in violation of the plaintiffs’ directions, was such a disposition of the goods as would deprive the plaintiffs of their lien for the purchase money.

I shall not contend that if the goods had been lost, the vendees would be liable. The delivery to a carrier other than the one selected by them would probably relieve them from liabilty. But it does not lie with the plaintiffs to say that the purchasers shall not have their goods because they, the plaintiffs, undertook to forward them by a different conveyance. They took the risk of the goods reaching their destination, but they could not disaffirm the sale on that account, For as we have seen, Dunlop & Dutton could have intercepted and accepted the goods at any intermediate place; and their acceptance would have, made the sale and delivery complete.

In all the numerous cases to which we have been referred upon the subject of constructive delivery, the question has arisen under the statute of frauds, or in cases where it has been sought to cast the burthen of loss upon the purchaser. Ho case can be found, where the vendor has undertaken to deliver, and parted with the possession, which holds that he may reclaim or retake possession, except under the right of stoppage in transitu. Upon principle he has no such right. The bargain and sale was complete, and except for the statute of frauds, the purchasers could have claimed a delivery anywhere, even in the plaintiffs’ storehouse. Shall they be allowed to avail themselves of their own wrongful act, in transmitting the goods by a different carrier to deprive the purchasers of their right to receive them ? I think not. The sale on credit; the packing the goods selected by the purchasers; boxing and directing them and putting them in transit, was all the plaintiffs could do to consummate the sale. That they did all this, or any part of it, imperfectly, or in a manner different from the instructions of the purchasers cannot enlarge or prolong the lien, or defeat the right of the latter to claim acceptance.

If the plaintiffs’ lien was gone and the • purchasers could accept delivery anywhere, as I think I have shown they could, then the only remaining question is, were the goods, while in transit, subject to levy and sale under an execution issued upon a judgment against Dunlop & Dutton ?

The judgment creditor of Dunlop & Dutton was entitled to succeed to all their rights and interests, and to reach, by process, all their property. The defendant, by authority of the execution, could seize any property of the judgment debtors and could sell any and all their interests. The purchaser would acquire all the interests and rights of the debtors. If the title was conditional, the purchaser could perform the condition and get a good title, as upon the sale of personal chattels mortgaged or pledged. (Strong v. Taylor, 2 Hill, 326, 328.)

It was competent for the sheriff to seize the goods in transit, as the property of Dunlop & Dutton, and the act of seizure was an act equivalent to the actual acceptance by them.

In Buckley v. Furniss, (15 Wend. 137,) the goods were ¡purchased in Troy and were in transit to the purchaser at Titus-ville. They were levied upon by the sheriff, at Malone, eight miles from their destination, under an execution against the purchaser. The vendors sued the sheriff, claiming the goods under their right of stoppage in transitu, and the court sustained the claim, on the ground that the goods had not reached their destination, or come to the actual possession of the vendee, and the right of stoppage in transitu was not lost. The court say: The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus (the vendee) had himself. * * * The process does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself.” In Le Ray De Chaumout v. Griffin, cited in 15 Wend, at p. 144, it is said that the judgment creditors, represented by the sheriff, had no better right to the iron than the purchasers had themselves, and that the plaintiff clearly had the right to stop the goods notwithstanding the levy. To the same effect is Covell v. Hitchcock, 23 Wend. 611. I cite these cases as showing, inferentially at least, that although the sheriff, as the representative of the creditors, had no better right to the property than the purchaser had, yet that he had the same right. And also that such right, whatever it may be, is subject to levy, while in transit, and which levy can be defeated by the exercise of the right of stoppage in transitu.

It seems to me, therefore, that if any acceptance of the 'goods, by Dunlop & Dutton, was necessary to complete their title, such acceptance was exercised by the sheriff in making the levy. But as I do not think, an actual acceptance was necessary I will not discuss the question. By the sale and delivery to the cartman, the plaintiffs became dispossessed of the goods ; they lost their lien upon them for the purchase money, and they cannot avail themselves of the mistake of the cartman in shipping, to regain possession, or to prevent a delivery.

I think the judgment was right and should be affirmed.

New trial granted.  