
    Cox v. Burns & Rentgen.
    The right of an unpaid, vendor to reclaim goods while still m tramita, is paramount to the lien of an attaching creditor of the vendee.
    An anxiety manifested by the vendee that the goods should be reclaimed, does not defeat the right of the vendor.
    The right continues until the goods have come to the actual or constructive possession of the vendee, notwithstanding the vendee refuse to receive them, if reclaimed within a reasonable time.
    What is meant by the books when they assert that stoppage in transitu is an adverse proceeding, and must be exercised adversely to the vendee, is, that it must not be asserted under a title derived from the vendee, and not that it must be asserted in hostility to him.
    If the vendor repossesses himself of the goods at the instance of the vendee, before the termination of the transit, this is not a stoppage of the goods m tramita in a technical sense, but a reoision of the contract of consignment, yet the vendor’s lien remains, until so repossessed, unimpaired.
    
      Appeal from the Lee District Court.
    
    Cox sued W. H. Farner & Co. in the District Court of Lee county, by attachment, on wbicb Burns & Bentgen were garnished, and who answered, denying the possession or control of property of Farner & Co. Issue was taken on this answer. The trial was had by the court, without a jury, the court'being requested to give its decision in writing, stating the facts found, in pursuance of section 1793 of the Code. On the trial, two bills of exception were signed, but by an order of this court, made by the late bench, at the December term, 1854, so much of the evidence contained in the said bills of exception as involved the adjudication of the facts of the case, was stricken from the transcript. It is, therefore, on the facts found by the court below, as set'out in the statement of the judge, that the decision of this court is based.
    The court below found the following state of facts to exist: W. H. Earner & Co. purchased the goods in controversy, on a credit, of 0. Ihmson, of Pittsburg, .prior to the 14th day of November, 1853, which were regularly consigned by said Ihmson to Earner & Co., at Keokuk, Iowa. A few days before the arrival of said goods in part, the house of W. H. Earner & Co. failed — became insolvent— and was closed up by the .sheriff — at which time Major Warren (since deceased), of the firm of Erancis Walton & Warren, of St. Louis, was at Keokuk, claiming to be the friend and agent of Ihmson. A few days prior to the arrival of the goods in question, Taunton, of the firm of W. H. Earner & Co., requested Major Warren to take possession of the goods or glass, if .it came, for the benefit of Ihmson, and also instructed him to write Ihmson, and have the glass stopped. On the 14th of November, 1853, the goods arrived at Keokuk, on the steamer Cuba, for which Burns & Rentgen were the agents, who immediately informed the captain of said boat that the consignees of the goods, W. H. Earner & Co., had failed, and that he must not deliver the goods till the freight was paid. A bill of freight was immediately taken, by the clerk of Burns & Rentgen, to Earner & Co. for. payment. Their house was found closed, and payment was not made. About 'this time, and while the goods were still on board of the boat, Major Warren appeared upon the boat, and claimed to take and control the goods for the benefit of Ihmson. His authority being questioned, he said he was the agent of Ihmson, and as such claimed possession of the .goods. Under his directions, they were taken from the boat, and stored with Burns & Rent-gen, who paid the captain of the boat the charges on the same. The firm of Earner & Co. did not receive the goods, or get possession of them, [although Taunton testifies that he'had control of the goods at the time.] While this was transpiring, the sheriff made his appearance, with a writ of attachment in favor of plaintiff against Earner & Co., but finding difficulty -in relation to the goods, did not then levy or attach. On the next day, the 15th, he did attach the goods, in possession of Burns & Rentgen, by garnishment. [In relation to this transaction, Taunton-testifies that on the levee, without receiving the goods, being unable to pay the freight, they made over, or turned over (using-both expressions), the goods to Major Warren, the professed agent of Ihmson, and for the use and benefit of said Ihmson; and gave, as a reason for doing so, that they had bought the goods of him on a credit, and were anxious to have them go to pay him their account for the same.] The bill of lading was delivered over to Major Warr.en, at the time he took possession of the glass. ■ About the 1st of December, 1853, Mr. McGrowen, who was the confidential clerk and collecting agent of 0. Ihmson in the west, arrived in Keokuk, from Pittsburg. He came immediately, upon receiving notice from the house of Erancis Walton & Warren, of St. Louis, of what had been done by Warren in relation to the goods. He fully ratified and sanctioned what Warren had done in the premises, [and represented the major as being the agent of 0. Ihmson.] McGrowen sold the glass in question to H. H. Ayres, who received the goods from Burns & Rentgen, and paid the charges by them; and Earner & Co. gave their note to Ihmson, to cover charges in coming west to carry out the object of turning ove? the goods in controversy.
    On this finding of facts, the court below concluded that the right of the attaching creditor, Cox, was paramount to that of Ihmson, and rendered judgment against Burns & Rentgen, as garnishees of W. H. Earner & Co. From this judgment, the garnishees appeal to this court, alleging that the conclusion of the court on the facts found, and the judgment rendered thereon, are erroneous.
    
      
      Edwards & Turner, for tbe appellants,
    made and argued fully tbe following points:
    1. An insolvent vendee may rescind .tbe contract of sale, witb tbe assent of tbe vendor, wbicb will be presumed. 1 Strange, 165; Long on Sales, 247, 256; 5 Durnf. & East, 111; 15 Eng. Com. Law, 79 ; Flanders on Shipping, 528 ; •5 Mass. 156 ; 1 Hill, 803.
    2. As to tbe vendor’s right of stoppage in iransitu. Long -on Sales, 308, 294, 295 ; 2 Mees. & Weis. 375 and 623 ; 9 lb. 517; Flanders on Shipping, 519 ; 14 Mass. 40; Bucldey v. Furniss, 15 Wend. 137 ; Oovell v. Bitclicock, 23 lb. 610; 8 Piet. 198; 4 Dana, 8; 10 Texas, 2; 14 B. Monr. 324; Aguine v. Parmelee, 22 Conn. 473; Liclcbarrow v. Mason, 1 Smith’s Lead. Gas. 765.
    3. As7to tbe ratification of tbe unauthorized acts of agents. Story on Agency, §§45, 46, 47, 244; Story on Cont. §§ 162., 163 ; Liclcbarrow v. Mason, 1 Smith’s Lead. Cas. 765.
    
      Samuel F. Miller, for tbe appellee,
    contended:
    1. Warren was not tbe agent of Ibmson, when be placed tbe goods under tbe control of Burns & Eentgen. Tbe only testimony offered of bis agency, was bis own declarations, and -they are not competent to prove bis agency. His agency must be proved, before bis declarations could be received. 1 Greenl. Ev. § 154; 3 Blackf. 436.
    2. That tbe subsequent ratification of tbe acts of an unauthorized agent, depending wholly on such ratification, could not divest the rights of third parties acquired in good faith, before tbe ratification. Story on Agency, §§ 246, 247, 440; Story on Cont. § 163; 7 Cowen, 746 ; 7 Alabama, 800.
    3. That tbe stoppage in transitu must be exercised adversely to tbe vendee, and not under him. 2 Kent Com. 714.; Abbott on Ship. 621; Flanders on Ship. 522.; 6 East, 371.; 5 Mass. 156.
    [The clauses embraced in brackets in tbe foregoing statement, this court treated as recitals of evidence, rather than facts found by -the court below.]
    
      
       See. 1193. — Upon a trial of a question of fact by the court, its decision, if requested by either party, shall be given in writing, stating the facts found and the ‘conclusion founded thereon, separately, all which shall be entered upon the record. Code, 259.
    
   Isbell, J.

We have examined witb much care, most, if not all, tbe authorities cited by tbe court below, in support of its position, as well as tbe numerous authorities cited by tbe respective counsel, in tbe able arguments made in this case, bave attentively considered tbe above statement of facts, and arrive at a conclusion different from that of tbe court below.

That .tbe lien of a vendor of goods sold on credit, during tbe time tbat tbe goods are in transitu, is paramount to that of an attaching creditor, whether tbe attachment is levied before or after tbe vendors’ right to reclaim tbe goods is asserted, is a point tbat does not appear to be here questioned. This right is founded upon tbe implied condition in the sale, that if the vendee should become actually insolvent between tbe shipment of tbe goods, and tbe reception of theft, by the vendee, the vendor shall bave a right to reclaim tbe goods. To allow an attachment to bave effect before tbe transit is at an end, would be to defeat a useful and necessary provision of the law merchant. Naylor et al. v. Dennie, 8 Pick. 204. Much has been said in argument upon tbe question, whether there was any stoppage of these goods in transitu. If it were material to determine whether there was any such stoppage, in a strict technical sense, we would say, probably, that there was not, but that the facts found, show a recision of tbe contract, instead of a stoppage in transitu. A stoppage in transitu, in a strict sense, being in tbe language of tbe books, an adverse proceeding, must be exercised adversely to tbe vendee, which means simply, as we apprehend, as stated by tbe learned judge, in tbe case above cited, “ no more than" tbat the right of stopping in transitu, cannot be exercised under a title derived from tbe consignee — not that it should be exercised in hostility to him” — tbe force and true meaning of which will be clearly understood by a moment’s reflection on the rights of tbe consignor and consignee in tbe two cases.

In a strict stoppage, the consignor does not generally become at once restored to all the rights in relation to the goods he had before sale, but only to those he would have after a sale, and before delivery, in case no credit bad been given- namely, to bold on to tbe goods until tbe price is paid. On tbe other band, tbe consignee, in a strict stoppage, generally retains tbe right to reclaim tbe goods by paying or tendering tbe price within a reasonable time, and on so doing has bis right of action for tbe goods. Not so in a case of a r-ecision, which contemplates no adverse rights; for here tbe consignor is restored to all tbe rights be bad in tbe goods before sala See Story on Sales, chapter 2.

But whether this was a stoppage in transitu, in a strict ■sense, or a recision, is not tbe question. Whether tbe assent of Earner & Co. that Ibmson should have back tbe goods, existed or not, we regard as entirely immaterial. Tbe main, and, perhaps, we may say, tbe sole question, that arises in this case, is, did Ibmson reclaim tbe goods before they came into tbe actual or constructive possession of Earner & Co. ? And this is so clear in point of fact, that it scarcely can be called a question. Tbe court finds, “that Earner & Co. did not receive or get possession of them ” ■(the goods), and nothing appears showing that any other person got any possession that might be constructively regarded as Earner & Co.’s possession, in case this finding should be construed to mean actual possession only. Certainly, Warren did not; be claimed tbe goods as Ibmson’s. When be claimed to be Ibmson’s agent, Taunton, of tbe firm of Earner & Co., requested that be should take possession of tbe goods, if they came, for tbe benefit of Ibmson, and to write to Ibmson and have tbe goods stopped. And here, so far as Earner & Co.'^intention to disagree to tbe consignment was concerned, this intention not to receive tbe goods, whether Warren was, or was not, tbe agent of Ibmson, in fact, is equally «clear, unless something appears that should have led Far-ner & Co. to suspect that be was not such agent. And nothing is apparent inconsistent with bis agency, though not proved by legitimate testimony to be Ibmson’s agent Warren nowhere claimed tbe goods by any title derived from Earner & Co., nor did be claim any title in himself in any way whatever. Without recounting tbe facts, we say, that the whole tenor of the testimony goes to show, that so far from Earner & Co. getting any possession of the goods, they .repelled any such possession; and we do not discover anything in the facts found inconsistent with the idea, that the goods were still in transitu up to the time McGrowen took possession, (which is admitted, as well as found, to be Ihm-son’s possession), unless "Warren was," in fact, the agent of Ihmson ;• and if so, Ihmson reclaimed the goods before the levy of the attachment. ■

We see nothing in the facts found that could have so impaired Ihmson’s lien as an unpaid vendor, as to give the attachment precedence over it. The authorities above sited, and those referred to in them, amply justify the several legal positions herein, assumed, and are fully sustained by many others, cited by appellee.

We may add, that there is nothing in the recitals of testimony in brackets, that would materially alter the conclusion at which we have arrived.

Inasmuch as the costs of the court áre not here apparent, it is ordered that a procedendo issue to the District Court, requiring it to proceed to enter judgment against the plaintiff, James E. Cox, for costs of suit incurred in that court.

Judgment reversed..  