#### Hoover vs. Tibbits and others.

The vendors’ right of stoppage *in tramita*continues until there has been an actual or constructive delivery of the goods to the vendee.

If the goods are forwarded by direction of the vendee to a particular warehouseman, who in receiving them acts as the agent of the *vendee,*the. *transitas*is at an end.

But where the warehouseman to whom the goods are directed to be sent, receives . them as the agent of the *carrier,*and while he is holding the goods as such agent for the purpose of collecting freight and charges, the vendor asserts his right of stoppage, the goods will not be considered as in the possession of the vendee, so as to cut off that right.

*80There being some evidence in this case tending to show that the warehouseman received the goods as agent of the carrier, and held them as such at the time the vendor asserted his right to stop them as *m IramiPu,*it was erroneous to instruct the jury, that if the vendee directed the goods to be sent to that warehouseman, and the goods arrived there in pursuance of that direction, they had come into the possession of the vendee so as to deprive the vendor of the right of stoppage. The jury should have been left free to determine upon all the evidence, whether the warehouseman received the goods as the agent of the carrier, or as the agent of the vendee.

APPEAL from tbe Circuit Court for *Milwaukee*County.

This was an action to recover possession of six casks of *zinc*paint from tbe defendants, wbo were warehousemen in tbe city of Milwaukee. About tbe middle of July, 1859, one Enoch Haskin, then a merchant in tbe city of Milwaukee, purchased tbe paint of Manning & Squier in tbe city of New York, on six months’ credit. Manning & Squier shipped the paint by Poag, Parmer & Co.’s Express, to Enoch Haskin at Milwaukee, to tbe care of tbe defendants in that city, and it came into tbe possession of the defendants on tbe 28th of July. On tbe afternoon of tbe 30th of July, tbe plaintiff, wbo claimed to have purchased tbe paint from Has-kin on that day, demanded possession of it from tbe defendants, having first offered to pay tbe charges on it, but tbe defendants refused to deliver tbe paint. Tbe defense was, that Enoch Haskin became insolvent on tbe 27th of July, bis stock of goods having been levied upon on that day, under executions for a large amount; that tbe defendants bad received the paint as the agents of Poag, Parmer & Co., and before tbe plaintiff bad made such demand, bad taken possession of said paint while *in*transitu, for Manning & Squier, by virtue of instructions from them and from Poag, Parmer & Co.; and also that tbe pretended sale to tbe plaintiff was fraudulent.

On tbe trial, J. *W.*Haskin testified that be purchased tbe paint for Enoch Haskin, and gave special directions to Manning & Squier to have it shipped to tbe defendants, whom be considered as tbe agents of Enoch Haskin for the receipt of the same. *J. K /Starkweather,*one of tbe defendants, testified that while doing a general business as ware-housemen, forwarders and commission merchants, they were *81tbe agents at Milwaukee, of Poag, Farmer & Co.’s Express; tbat they received tbe paint in question as such agents; tbat until tbe reception of a dispatch from Poag, Farmer & Co., on tbe 30tb of July, notifying them to detain tbe paint, they did not know to whom it belonged, there being no package on tbe bill of lading which they bad received, described by tbe mark tbat was on 1jie casks of paint.

Tbe defendants asked tbe circuit judge to instruct tbe jury, “tbat tbe property in question was *in transitu*and subject to tbe right of tbe vendors to stop it, and repossess themselves of it, on tbe insolvency of tbe vendee, not only while being transported from New York to Milwaukee, but while it remained in tbe possession' of tbe defendants, *either as warehousemen or as agents of the*carriers.” Tbe judge refused this instruction, but gave tbe one which is stated in tbe opinion of tbe court.

Several other questions were presented by tbe record and argued by counsel; but as they were not passed upon by this court, a statement of them is unnecessary.

*Butler*& Martin, for appellants.

*Goon & Cotton,*for respondent.

November 19.

*By the Court,*

Cole, J.

Tbe real question presented by tbe pleadings and evidence in this case, was as to tbe right of tbe vendors of tbe property to stop it in tbe bands of tbe appellants. Tbe principle of law would not be controverted, tbat tbe vendors’ right of stopping tbe property continued until there bad been an actual or constructive delivery thereof to tbe vendee. Tbe point of inquiry before tbe jury then was, whether tbe property was still to be considered in its transit, or whether it bad arrived at its place of destination and bad come into tbe possession or under tbe direction of tbe vendee himself. Tbe solution of this question would depend upon tbe further inquiry — In what capacity did tbe appellants receive tbe goods? Were they simply tbe *consignees*or agents of tbe transportation company, receiving and bolding tbe property *as such*for tbe purpose of collecting tbe freight, or any other lawful object, so tbat tbe property was still in tbe possession of Poag, Farmer & Co.? *82The relation of principal and agent might- unquestionably exist between the appellants and the carriers in respect to this identical property, so that the vendors could still assert their right of stoppage *in transitu*because the property was yet in the possession of the carrier. Now this material inquiry, as to whether the appellants were the agents of the carriers and received and held possession of the goods *as such,*was taken from the consideration of the jury by the general charge of the circuit court, and' by its refusal to instruct the jury upon that point as asked by the appellants. The circuit court, in its general charge, said: “Written instructions to the jury have been presented to me by the counsel on both sides, and Í am asked to charge you in pursuance of these instructions; instead of which I prefer to disregard the instructions, and in place of the same to present to you only one question, which I consider the only question in the cause, and that is, that if you find that Joseph W. Haskin, at the time of the purchase, directed the vendors to ship the goods to *Tibbits, Starkweather & Go.,*warehousemen at Milwaukee, and the goods arrived there in pursuance of such directions, then I charge that when they came into the possession of *Tibbits, Starkweather*& *Co.,*they were in the vendee’s possession so far as to deprive the vendors of the right of stoppage; and in that case your verdict must be for the plaintiff for the value of the paint. And if you find that no such direction was given, then your verdict must be for the defendants.” Now, although J. W. Haskin testified that at the time he purchased the lead of Manning & Squier, he gave special directions to them to have the goods shipped to *Tibbits, Starkweather & Go.,*of Milwaukee, warehousemen, whom he considered as the vendee’s agents for the receipt of the same, still, one of the appellants, *Starkweather,*testified that they were agents, in July and prior to that time, of the carriers, Poag, Farmer & Co.’s Express,'and that at the time they received the goods, they received them as the agents of Poag, Farmer & Co.; and it is clear from the whole case, that one of the points in controversy between the parties was as to the capacity in which the appellants were acting when they received the property. *83For if tbe appellants were really acting as agents for tbe vendee, tben wben tbe goods arrived at their warehouse and. were received by them, tbe property would be in tbe possession of tbe vendee, tbe *transitus*would be at an end; and tbe vendors’ right of stoppage be extinguished. While on tbe other band, if tbe appellants received tbe goods as agents for Poag, Farmer & Co., as they might have done for tbe purpose of collecting freight and charges due upon them, and, while bolding them as such agents, tbe vendors asserted their right of stoppage, tben tbe goods would not be considered in tbe possession of tbe vendee so as to cut off this right.

It will at once be seen that tbe circuit court, in tbe charge it gave, excluded from tbe consideration of thei jury the question as to whether tbe appellants received tbe goods as agents of tbe carriers or not. For tbe jury were told that if at tbe time of purchase, Joseph W. Haskin directed tbe vendors to ship tbe goods to *Titbits, Starkweather*& *Co.,*ware-housemen at Milwaukee, and tbe goods arrived in pursuance of such directions, tben, as a matter of law, tbe court held that wben tbe property came to tbe possession of *Titbits, Starkweather*& *Co.,*it was in tbe vendee’s possession, so far as to deprive tbe vendors of tbe right of stoppage.

It appears to us that this instruction was erroneous, in assuming that tbe appellant necessarily received tbe goods as tbe agents of tbe vendee, and in no other capacity, provided they bad been shipped to them by tbe vendors in pursuance of directions given by J. W. Haskin at tbe time of purchase. For notwithstanding these directions were given, and tbe goods were shipped in pursuance of them, tbe appellants might have received and held possession of them strictly as tbe agents of tbe carrier. Whether they did so receive them or not, was a most important fact in tbe case, to be determined by tbe jury from tbe evidence.

Now although, in tbe language of Chancellor KENT, (2 Comm., side paging, 545) “there has been much subtlety and refinement on tbe question, as to tbe facts and circumstances which would amount to a delivery sufficient to take away tbe right of stoppage, tbe point of inquiry being whether tbe *84property is to be considered as still in its transit,” when it is beld in tbe bands of the carrier, or of the wharfinger as his agent, subject to the carrier’s lien for freight, then the right of stoppage is said still to exist. *Crawshay and others vs. Backs,*8 E. C. L. R, 51; *Edwards vs.*Brewer, 2 M. & W., 874. So where goods remained in the custom house subject to duties, although the freight had been paid, it was held that the *transitas*was not at an end, and the vendor could assert his lien. *Donath vs. Broomhead,*7 Barr R., 301. See also *Burner et al. vs. The Trustees of the Liverpool Docks,*6 Wel., Hurl. & Gordon, 543; *Van Casteel et al. vs. Booker et al.,*2 id., 691. Of course a delivery of the goods to the appellants, as the agents of the vendee, would put an end to the *transitas. Allan et al. vs. Gripper et al.,*2 Cromp. & Jer., 218; *Mottram vs. Heyer,*1 Denio, 483; *Dodson vs. Wentworth,*4 Man. & Granger, 555 (1080); *Sawyer vs. Joslin,*20 Vt., 172. Therefore, the turning point in the case was, whether the appellants received the goods as the agents of the carriers, Poag, Farmer & Co., or as the agents of the vendee. Since this question was taken from the consideration of the jury by the charge of the circuit court, there must be a new trial. This renders it unnecessary to notice the other questions discussed by counsel.

Judgment of the circuit court reversed, and a new trial ordered.