
    Nathan P. Calahan et al. v. Francis M. Babcock et al.
    
    1. The right of stoppage in transitu is regarded with favor, and the engrafting of further restrictions upon the rule governing it, is not warranted by public policy.
    2 The right of stoppage in transitu is extinguished only by the actual and complete delivery of the goods consigned, to the vendee or to some agent of and for him.
    3. In the absence of an express or implied understanding to the contrary, the employment of a carrier by a vendor of goods on credit, constitutes all middlemen into whose custody they pass agents of the vendor, for their transportation and delivery; until the complete performance of which duty the goods consigned are deemed to be in transitu.
    
    4. The transfer of goods, consigned in the usual general terms, by a vendor on credit, from the coaches of a carrier by railway, to a freight depot or warehouse- at the station designated for their discharge, in the vicinity of the vendee’s place of business, there to await the payment by him of the charges thereon, does not ipso facto constitute a delivery thereof; but will be deemed the reasonable exercise of a right and duty by the carrier in the course and furtherance of their transit, referable to and in virtue of his original employment by the vendor, not as an act of, but as precedent to delivery.
    
      5. The seizure of goods m transitu at the suit of the vendee’s creditors, does not extinguish the right of stoppage, and the vendor on credit may maintain an action for them or their value against the officers making the seizure.
    3, The commencement of an action against a vendee by the attorney of a vendor for the price of goods sold on credit, without the vendor’s knowledge, and before either was apprised that the transitus was not terminated, is not a waiver of the right of stoppage, if it be. asserted within a reasonable time, and the improvident action be not prosecuted. . It is not competent in rendeiing judgment for the value of goods unlawfully seized by an officer, to order that it bear interest after its rendition at a rate exceeding six per centum.
    Error to the court of common pleas of Mahoning county. Reserved in the district court.
    The case is sufficiently stated in the opinion of the court.
    
      Thomas W. Sanderson (of Sanderson <& Jones) for plaintiffs in error:
    1. When the goods had arrived at Youngstown, and had been unloaded from the cars into the freight-house or depot of the railroad company, the right of the vendors to stop them 
      in transitu was terminated. They had arrived at the place of their ultimate destination, as understood between the vendors and vendee.
    When the carrier has transported the goods to the place of delivery and placed them in such condition as that it requires something to be done by the consignee in order to place them in course of delivery, every thing which the carrier was bound to do, as a carrier, in full performance of Ms agreement, has been performed. The goods are subject to the orders of the consignee ; and they will remain stationary until he does some act concerning them. He has just as absolute and complete control of them and dominion over them, as if they were in his own store, subject only to the payment of the freight upon them to the carrier; and he can order them here or there, at pleasure, by giving his orders and directions to the carrier, as he might do if they were in his own store, by giving the orders and directions to his own servants. In earlier times, in the infancy of the right of stoppage in transitu in England where it had its origin, goods were usually transported by wagons, stage coaches, and in vessels by water, and in the case of transportation by wagons and stage coaches, it was customary to deliver the goods to the consignee at his very residence or place of business. But when the carrying business grew into greater importance, and great lines by which goods were transported were organized, it became necessary to have depots or warehouses in which to deposit the goods at the end of their journey, and then the custom of actual delivery at the consignee’s store or residence went into disuse, and the other custom of delivery at the town or place within which the consignee had his immediate place of business or residence began to obtain; and hence, also, different rules as to delivery and constructive possession began to be made by the courts. In the case of transportation of goods by water, in the earlier times of the common law, they were usually deposited, upon their arrival at the places of their destination, in warehouses owned or controled by others than the carriers ; and all liability of the carriers concerning the goods ceased upon the delivery of them to such keepers of such warehouses, and. they were considered at the risk of the consignee as soon as unloaded from the carrying vessel into such warehouse, as being in his constructive possession, that is, subject to his order. And in very many instances these warehouses were used by the consignees of goods, as places of deposit of the goods until sold, to be sent to some other place from such warehouse. It is in view of these facts and customs, that the earlier English cases should be examined; as it will be found that when the courts first began to rule upon the question of the duration of the transit of goods, it was held that there must be an actual delivery of the goods into the immediate possession of the consignee before 'the vendor’s right of stoppage in transitu was terminated ; but that as the customs changed so did the rule relax, until the doctrines of constructive delivery and constructive possession grew up, and were applied in such cases.
    Thus, in Stokes v. Lakwere, 3 Term. Rep. 466, and 3 East. 397, Lord Mansfield held, that there must be an actual • delivery to the consignee, in order to defeat the vendor’s right of stoppage in transitu; and in Hunter v. Beale, 3 Term. Rep. 466, the same judge held “ that there must be ani absolute and actual possession — the goods must have come to the corporal touch of the vendee ” in order to defeat the right. But this doctrine was soon found to be too strict, and that, instead of its continuance as the law being pro-motive of justice, it was found to be serversive of it; whérefore the courts of England did not permit the law, as ruled by Lord Mansfield in the two cases cited, to remain as the law any longer than a fair case was made in which to overrule it. See Dixon v. Baldwin, 5 East. 184; Houston’s Stoppage in transitu, 122 ; Rowe v. Pickford, 8 Taunt. 83 ; Wentworth v. Outhwaite, 10 Mees. & Welsb. 436 ; Richardson v. Goss, 3 B. & P. 119 ; Scott v. Pettit, 3 B. & P. 469 ; Seeds v. Wright, 3 B. & P. 320 ; Valpy v. Gibson, 4 C. & B. 837. An examination of these cases, with the leading case of Lickbarrow v. Mason, 2 Smith’s Lead. Cas. (pt. 2d,) 1057, gives us all the light which can be thrown upon the question by the English authorities, and the following may be fairly regarded as the rule deducible from them, viz : That where the goods have arrived at a point or place designated by the buyer to the seller as the place of their ulterior destination, and where they are to be subject to the order or disposition of the buyer, and where they will remain until he puts them again in motion by some act done or order given by him, the vendor’s right to stop them in transitu is terminated.
    The cases cited bring us down to the times of railways and other great lines of transportation, when the customs appertaining to the storage and delivery of goods which prevailed during the time which most of these decisions cover, became inapplicable and impossible. Under the modern modes of transportation by railway, when the goods are once placed in the depot, the agents and employees of the railroad company having the custody of them having nothing further to do with them but to await some action on the part of the consignee, and act, as to reception of freight and delivery of the goods, when he acts or orders them to act. The goods are, to all intents and purposes, completely under the control of the consignee, and he may cither send for them, or sell them to some one, to be removed by sdch person, and, in fact, control and exercise dominion over them the same as though they were in his own store, subject only to the carrier’s lien for freight. I hold, therefore, that goods that may be thus controled set again in motion, or of which a valid sale and transfer may be made to another, are as completely in the constructive possession of the owner as it is possible for them to be. See Hooban v. Bidwell, 16 Ohio, 509.
    The creditors of Hull, by their attachment, took all his rights in the goods attached — took just the same rights that a purchaser from Hull would have taken.
    I further cite the following authorities: Parson’s Contr. 819, et seq; 2 Kent’s Com. 543; Hilliard on Sales, 219, et seq; Angell on Carriers, 310; Sawyer v. Joslyn, 20 Verm. 205 ; Guilford et al. v. Smith et al. 30 Verm. 49 ; 
      Howe et al. v. Stewart, 40 Verm. 145 ; Frarfer v. Hilliard, 2 Strobhart, (S. C.) 309 ; 9 U. S. Dig. 392, § 61; Rowly v. Bigelow, 12 Pick. 307-314 ; Hays v. Morrill, 14 Penn. St. (2 Harris.) 48.
    2. In casefe of transportation of goods by railway companies, the warehouse or depot at the town, or city, or station-to which the goods are consigned, is the proper place of delivery to the consignee ; and when the goods are unloaded from the cars, (in the absence of the consignee,) and are-safely stored in the freight-house or depot of the railway company at such town, city or station, the liability of the railway company as a common carrier is terminated ; and when the goods are thus transported and stored, the character of a warehouseman attaches to the railway company, and, as such, it is required to keep the goods in store for the consignee for a reasonable time without any additional reward ; and during such time the company is liable only as a warehouseman. In support of this proposition I submit the following authorities : The Norway Plains Co. v. The Boston and Marine Railroad Co. 1 Gray, 263 ; Hyde v. The Trent and Mersey Nav. Co. 5 Term. Rep. 397 ; Thomas v. The Providence and Boston Railroad Co. 10 Metc. 472 : Denny v. The New York Central Railroad Co. 13 Gray, 481: Richards v. The Michigan Southern Railroad Co. 20 Ill. 404 ; Bausemer et al. v. The Toledo and Wabash Railroad Co. 25 Indiana, 434 ; Porter v. The Chicago and Rock Island Railroad Co. 20 Ill. 407 ; The New Albany and Salem Railroad Co. v. Campbell, 12 Indiana, 55.
    If these authorities are sufficient to establish my second, proposition, it follows that the first proposition is also established ; for, if the railroad company holds the goods after their arrival at the place of destination, and after being placed in the depot of such company, as a warehouseman, and not as a common carrier, the transitus is certainly ended, and the goods are held only for the consignee. The duties of the common carrier, as such, have been fully performed, and it no longer holds the custody of them in connection with the transportation of them.
    
      
      Hutchins & Glidden for defendants in error :
    The right of the unpaid vendors to stop these goods in their transit continued at the time they were levied upon by the sheriff.
    Both upon authority, and as necessary to the full beneficial enjoyment of a right which all courts look upon with favor, the arrival of the goods at Youngstown, and their arrival at the freight depot of the carrier, under the circumstances of this case, did not defeat the right of the unpaid vendor to stop them in transitu.
    
    And, both upon principle and the authorities, the follow ing propositions may be stated as the law in such cases :
    (1) The goods remain in transitu until they are either actually or constructively delivered to the purchaser.
    (2) That in order to constitute a constructive delivery to the purchaser, there must be an actual delivery, by the carrier, either to some agent of the purchaser, or in some place which is so the place of the purchaser “ that the putting them there implies the intention of delivery ” thereby.
    
    (3) That the carrier is not such agent of the purchaser, by virtue of his general employment as carrier, so that his retention of the goods at the end of the route will be a constructive delivery to the purchaser. Nor does the carrier’s liability change to that of warehouseman until he is ready to deliver the goods, and the consignee had a reasonable opportunity to remove them.
    (4) Even if the carrier be also a warehouseman, and the goods are placed in his warehouse at the end of the route until the purchaser shall come or send for them, this does not make him so the agent of the purchaser as that such retention of the goods will be a constructive delivery to the purchaser.
    (5) When the same person is both carrier and warehouseman, the character of agent for the purchaser to accept as well as to make delivery of the goods, is not impressed upon him by his original employment to carry and deliver, but, if he is such agent at all, it is only by vi vtue of some new agreement, either express or implied, from a course of business.
    (6) So, when he is both carrier and warehouseman, and retains the goods in his warehouse at the end of the route, this does not make such warehouse so “ the place of the consignee, * * * that, the putting them there implies the intention to deliver,” unless by virtue of some new arrangement, distinct from his original employment as carrier.
    
    (7) In the absence of such new arrangement, either made expressly or implied from the course of business, it is immaterial whether the carrier holds the goods at the end of the route as carrier or as warehouseman ; for, in either case, there has been no delivery.
    See Benedict v. Scharttle, 12 Ohio St. 521, quoting Lord Campbell, 3 Ho. L. Cas. 309, 328; 1 Parson’s Contr. 482, 483 ; Bartram v. Farebrother, 4 Bing. 579, 585 (13 E. C. L. Rep. 644, 647); Dodson v. Wentworth, 4 M. & G. 1080 ; 1 Smith’s Lead. Cas. (6 Am. ed.) part 2d. pp. 1103, 1104; Whitehead v. Anderson, 9 M. & W. 518 ; Heinekey v. Earl, 8 Ellis & Blackburn, 410, 420 ; 1 Smith’s Lead. Cas. (6 Am. ed.) part 2d. pp. 1070, 1071, notes to Lickbarrow v. Mason; Covell v. Hitchcock, 23 Wend. 611; Edwards v. Brewer, 3 M. & W. 375 ; Mottram v. Heyer, 5 Denio, 629 ; Aguirre et al. v. Parmelee, 22 Conn. 473, 482 ; Grant v. Hill, 4 Gray, 361, 365 ; Harris v. Pratt, 17 N. Y. Rep. 249, 253, 264, 267 ; 6 Duer, 606 ; Buckley v. Furniss, 15 Wend. 137, 141 ; Hilliard on Sales, 209, 224; Bolton v. Lancashire & Yorkshire Railway Co. 1 Law Rep. C. P. 431; James v. Griffin, 2 M. & W. 623, 633, 635; 2 Redf. on Railways (3d ed.) 56, 132 ; S. & S. Stat. 93 ; Moses v. Boston (& Maine Railway, 4 Foster, 71; Clark v. Meedles, 25 Penn. St. 338 ; Blossom v. Griffin, 3 Kernan, 569 ; McCarty v. New York & Erie Railway, 30 Penn. St. 247 ; Wood v. Grocker, 18 Wis. 345 ; Ala. & Tenn. Co. v. Kidd, 75 Ala. 209 ; Smith v. Nashua & Lowell Railway, 7 Foster, 86 ; Michigan Central Railway v. Ward, 2 Mich. 538 ; Moses v. Boston & Maine Railway, 32 N. H. 523 ; Redfield on Carriers, § 241 ; Angell on Carriers, 228, 310; Long on Sales, 334 ; Story on Sales, § 333.
    That there was, in this case, any express agreement such as would constitute the railroad company, either as carrier, or as warehousemen, so the agent of the pnrchaser, as that the retention of the goods by the company, or their removal to the depot, would constitute a constructive delivery to-Hull, is not claimed, and the evidence clearly negatives any such idea.
    Here, too, every reasonable intendment must be made in favor of the judgment; and before it can be reversed on this ground, the proof must show affirmatively such state of facts-as will enable this court to say that the court below erred in not finding such arrangement to exist.
    This, we think, can hardly be claimed, in view of the rule as stated in Story on Sales, § 337, that the proof must “ distinctly show,” must “ indicate dearly,” the existence of such arrangement.
    We therefore submit that, upon the above grounds, the-judgment should be affirmed.
    But there is still another ground upon which we claim the same result. And that is, that while the goods remained at the depot the freight and charges were unpaid, and the carrier had a lien upon them and right to retain them until paid, and that, therefore, neither was the carrier bound to deliver, nor the vendee entitled to demand the goods, until the freight and charges were paid, or such payment waived ; neither of which was done.
    That the carrier had such lien, and that the removal of the goods to the depot did not waive it, we suppose needs no support from argument or authority.
    And that these facts are material in determining the question at issue, we refer the court to the cases before cited : 2 M. & W. 375, 631; Crawshay v. Eades, 1 B. & C. 181 ; Mottram v. Heyer, 5 Denio, 629, 631, 637 ; Story on Sales, § 342 ; 2 Kent, 767 (rnarg. 547) ; Northey v. Field, 2 Esp. 613 ; Hilliard on Sales, 220 ; 1 Smith’s Lead. Cas. (6th ed.) pt. 2d, pp. 1104, 1105 ; Donath v. Bromhead, 7 Barr. 301 Holbrook v. Vose, 6 Bosworth, 76, 105.
    The rule and policy of the law are that .the goods are subject to the lien of the vendor until finally delivered to the purchaser ; and anything which delays or prevents such final delivery operates to continue the lien. And any right or lien acquired by any creditor, during the continuance of the vendor’s lien, must necessarily be subject to this former and better one.
    And though the vendee may himself do any act necessary to consummate the delivery to him, aud to defeat the vendor’s lein, yet his crditor has no such right. He is in m> sense the agent of the vendee, either to pay the freight or to accept the delivery for him.
    That neither the levy of an attachment, nor the failure of the vendor to assert his claim, for a much longer time after-the levy of the attachment, than it was delayed in this case,, interfere with the vendor’s lien, we refer the court, among many other authorities, to 2 Kent, 771, note a; Hilliard on. Sales, 217 ; 12 Ohio St. 515 ; 15 Wend. 137 ; 23 Wend. 611; 8 Pick. 198 ; 4 Gray, 366 ; 22 Conn. 473.
    We therefore submit that the goods, while in the depot at Youngstown, were subject to the vendor’s right to stop them in transitu, and that this right was not at all affected by the levy of the attachments against Hull, and the-removal of the goods by the sheriff.
    Was this right lost, or at all affected by the attachment proceedings instituted by the vendors against the purchaser ?
    There is nothing in the record to show affirmatively that they knew of the suit commenced by their attorney, or authorized it, and, therefore, there is no error affirmatively shown.
    Even if the action was by authority, the sheriff was not instructed or authorized to levy on these goods, and, therefore, there was no waiver of the vendor’s right.
    Then, if the right was affected at all by the proceedings, it must be because the vendors cannot sue for the price and stop the goods also ; or, after sueing for the price, cannot stop the goods.
    If the right of stoppage in transitu proceeded at all upon the ground of a rescission of the original contract of purchase, there would, of course, be great force in saying that he could not adopt a course of action based upon a rescission of the contract, and at the same time, or afterward, commence an action for the recovery of the price of the goods. But this right of the vendor is founded upon Ms right to enforce an equitable lien, and it in no respect proceeds upon the ground of a rescission of the contract. Rowley v. Bigelow, 12 Pick. 307, 313; Atkins v. Colby, 20 N. H. 154 ; Grout v. Hill, 4 Gray, 361; 7 T. R. 445 ; Jordon, Ellis & Co. v. James, 5 Ohio, 99; 1 Parson on Contracts, 479 ; Long on Sales, 337 ; 2 Kent, 541, (marg.); Hilliard on Sales, 211; 15 Wend. 137; 5 Denio, 686; 1 Smith’s Lead. Cas. (pt. 2d,) 1115 ; 15 Maine R. 314.
    And these authorities clearly show that the vendor may sue for the price, regardless of the question whether he has stopped the goods in transit or not; and that the vendee may recover the possession of the goods upon the tendering of the purchase price.
    As the bill of exceptions shows that no order was given to attach these goods, it stands simply like a case of attachment commenced to recover the price of goods sold. This equitable lien of the vendor, like any other lien given, does not, when asserted, destroy the contract previously existing, nor is it itself destroyed by the vendor’s seeking to enforce his other remedies upon the contract, exclusive of his equitable lien. He may resort to any or all of his remedies at his election, and while he, of course, can have but one satisfaction, he may, at any time prior to the delivery of the goods to the vendee, unless he has received pay for the goods, enforce his equitable lien.
    We submit, therefore, that the commencement of proceedings to recover the price of the_e goods did not defeat this equitable right, and that it was not defeated by the seizure of the goods in attachment by the plaintiffs in error. This being so, and the transitus not having been terminated by a delivery to the vendee, either actual or constructive, at the time the vendor’s right to stop the goods in trasitu was exercised by the defendants in error, it follows that the judgment of the court of common pleas should be affirmed.
   West, J.

This action was tried, on submission to the court, at the January term, a. d., 1868, of the Mahoning common pleas, on an agreed statement of facts, and two depositions offered by the plaintiffs in error ; all of which evidence was, by bill of exceptions, incorporated into the record, and is now before this court. Judgment having-been entered against the plaintiffs in error, and a motion by them for a new trial, because 1st, the judgment was against the law; 2d, was not sustained by the evidence; and 3d, ought to have been for and not against them, having been overruled, the cause was removed by petition in error into the district court of Mahoning county, whence, for want of time to conclude its hearing, it was taken to the district court of Portage county, wherein it was reserved for decision in this court.

The record shows that on the 25th September, 1866, Babcock & Co., merchants of New York, sold on credit and consigned in the ordinary way to the address of “ Geo. T. Hull, Youngstown, Ohio, A. & G. W. R. R,” goods agreed, on the trial, to be of the value of $1,618.77, which, on the 3d of October, 1866, arrived at the Youngstown station and were transferred by the railroad company’s agent to its freight depot, where, in the evening of the same day, they were seized in attachment, the charges thereon paid, and the goods thence removed by the plaintiffs in error, then sheriff and deputy sheriff of Mahoning county, at the suit of sundry creditors of Hull, a retail merchant of Youngstown, who, pending the transit of the goods, had become insolvent.

Merchandize consigned to Hull was usually called for at this depot, the charges paid thereon, and it carted and delivered to Hull, at his place of business, by draymen, without special directions from him. At the time the goods in controversy were seized, Hull had no knowledge of their arrival and had given no directions in regard to them; nor had any drayman or other person called for or demanded them. They were awaiting the payment of charges as a condition precedent to their transfer and removal by dray-men to Hull’s place of business. No one having charge of the freight-depot, custody of the goods, or in the employment of the railroad company, had been constituted an agent of Hull.

The attorney of Babcock & Co., without their knowledge, and before either had learned that the possession of the goods had not passed in fact to Hull, commenced in action against him in Trumbull county for their purchase price,, which, however, has not been prosecuted.

On the 8th of October, 1866, Babcock & Co. asserted their right of stoppage in transitu by making demand of the railroad company, and, afterwards, of the plaintiffs in error, and on the 12th of October commenced this action.

These facts do not distinguish the case from the usual consignments of goods sold in the ordinary coui'se of business between merchants. Several errors are assigned on the record, but the admirable and exhaustive arguments of counsel are chiefly — that of the plaintiffs in error exclusively— to the one involving the doctrine of stoppage in transitu, which will first be considered.

I. (1) For the plaintiffs in error it is insisted, in effect, that if the facts in the case show the vendor’s right of stoppage not to have been extinguished under the rule hitherto recognized, the novel method of modern transportation demand that such restrictive modifications be engrafted thereon as will work its extinguishment.

This cannot be conceded. The right of stoppage in transitu is regarded with so much favor that the rule governing it will not be subjected to restrictions less liberal than those of immemorial prescription.

(2) It is further contended, however, that a rational application of the principles on which the rule is founded, to existing methods of the carrying trade, will hold the arrival of goods, transported by railway, at the station designated for their discharge, the termination of their transit, and, consequently, of the right of stoppage.

This proposition is also untenable, either on authority or reason. The transit of goods consigned in the usual general terms, by a vendor on credit, is terminated and his right of stoppage extinguished only when their possession is voluntarily and actually transferred to the vendee, or to his agent. But the carrier of goods thus consigned, and all middlemen into whose custody they pass in furtherance and virtue of the consignment, are, by implication of law, constituted agents of the vendor, not of the vendee. Therefore the transfer of goods consigned, as in this case, from the coaches of the carrier by railway to his freight-depot or warehouse at the station designated for their discharge, in the vicinity of the vendee’s residence or place of business, there to await the payment by him of the charges thereon, as a condition precedent to their removal to and delivery at his business house, does not ipso facto constitute a transfer or delivery of possession to him, or to any one as agent of and for him; but is the reasonable exercise of a right and duty by the carrier, in the course and furtherance of their transit, referable to and in virtue of his original employment by and as agent of the vendor to transport and deliver. Wherefore, until the vendee in person, or his agent under and for him, shall become custodian in possession, neither the transit of the goods nor the vendor’s right of stoppage will be held to have terminated.

It is not intended to intimate that the middleman may not become the agent of, and, as such, the custodian holding possession under and for the vendee. But such agency will not be implied from the carrier’s original employment, and can arise only by showing affirmatively some arrangement or understanding to that effect other than the general words of an ordinary consignment. No such arrangement or understanding is disclosed by the evidence in this case. The ■custody of the goods, at the time of their seizure in the carrier’s depot, was, therefore, in the agent of the vendor, whose right of stoppage was consequently subsisting in full vitality at that date.

II. The seizure of goods in transitu, at the suit of the consignee’s creditors, does not extinguish the vendor’s right of stoppage, but furnishes' him a cause of action for them or their valué ágainst the officer making the seizure, which will be enforced, if asserted in due time.

III. The commencement of an action against the vendee by the attorney of the vendor of goods on credit, for their purchase price, without the vendor’s knowledge, and before either has been apprised that their transitus has not terminated, does not constitute a waiver of the right of stoppage, if it be asserted in a reasonable time, and the action for their price be not pressed ; which the record shows to have-been the facts in this case.

IY. The cause of action upon which judgment was rendered by the common pleas against the plaintiffs in error, sounded in tort, upon which it was not competent to award interest at a rate exceeding six per centum per annum.. Wherefore so much of tbe judgment of the common pleas as awards interest thereon after its rendition at seven per cent-um, will be annulled, and the judgment to this extent modified, at the costs of the defendants in error; and as to the-residue, will be affirmed and remanded for execution.

Judgment accordingly.

Welch, C. J., and White, Day and McIlvaine, JJ., concurred.  