Polynesian., 1861-06-15
Ghe polpuesian.
SUPREME COURT.


CO-pdrtners, trading as JANION, GREEN & Co.
JUSTICE ROBERTSON delivered the Judgment of the
Court as follows:
This is controversy submitted to the decision
of the Court, without the formality Of trial, un-
der the provisions of Section l, l40 of the Civil
Cods. The following is the statement of facts as
agreed upon by the parties:
The said firm of Janion, Green & Co. are large
importing merchants in Honolulu, and at different
times sold to said j. L. Waterhouse thrty-eight
cases printed cottons, being portions of different
parcels of English goods imported by them.
Previous to the sale of said cases, said Water
house had made an arrangement with said Janion,
Green & Co., by which certain space in their
fre-proOf store was set apart for goods purchased
by said Waterhouse, in return for which accommo-
dation he allotted certain space in the cellar
der Makee & Anthon's building. which he had the
control of, to JaniOn, Green Co.
The above named thirty-eIght cases of goods,
when selected and bought by Mr.. Waterhouse,
were put ON the said space allotted to his goods
within Janion, Green & Co. store, (the key and
custody of which store remained exclusively with
them.) Mr.. Waterhouse having inspected said
cases and being satisfied Herewith, signed pro-
missory notes to Janion, Green & Co. for the
amount thereof, payable at the dates agreed upon.
WaterhQpse gave no receipts to Janion, Green
Co. for said goods when shifted in their store to
the space set apart for his goods, until he came
to take them away out of said store; but then,
and not till then he gave receipts for the delivery
of such cases as he took away. The thirty-eight
cases which form the subject matter of this refer
ence still remain in the said store of JaniOn Green
Co., on the space allotted to Mr.. Warehouses;
goods, but no receipt has been given by him to
Janion, Green & Co. therefor.
None of the promissory notes made by said Wa
terhouse to Janion, Green & Co. have been paid,
although the major part are over due.
IN ha dau Of Mau VUaf
cuted deed OF assignment to said W. L. Green
and Henry Hackfeld, reciting bis Indebtedness in
a large amount, which he declared himself unable
to pay, in consideration whereof he thereby assign
ed all his estate both real and personal, to said
w. L. Green and II. Hackfeld, in trust to sell the
same for the liquidation of his liabilities to his
| several creditors parties to the said assignment
| and who thereby released him from the same, in
consideration of such assignment; the proceeds of
said estate when sold to be distributed amongst
his said creditors pro rata after payment of costs
and commissions.
A question has consequently arisen between the
said Janion, Green & Co. and the said assignees
whether or not the said Janion, Green & Co. are
entitled to retain said thirty-eight cases. which are
still in their store, under the circumstances above
stated or whether the said thirty-eght cases,
passed to the said assignees under the deed of as
signment, for the solution of which said question
| this statement of facts is, by mutual consent of
the parties, respectfully submitted your Honors
for adjudication, under Section ,l40 of the Civil
| Code.
| 1t is understood that the assent of W. L. Green
to the assignment is not to operate as a waiver
of the alleged lien of JaniOn, Green & Co., mas
much their claim to such lien was stated to and
understood by the creditors, including Mr.. Hack
feld before the execution of said assignment, and
the question of lien left open.
Upon the foregoing facts, the plaintiffs, as as
/ = olo H. IL. e
| the goods in question, on the ground that on the
9Th of May those goods were in the actual possess
ion of Mr.. Waterhouse, and passed to tive plain
| tifs by the assignment. This claim is resisted on
the part of the defendants upon two grounds, viz :
First, that the defendants hed not parted with the
actual possession of the goods at the time of the
assignment. and the promissory notes given by Mr..
WaterhOuse for the price of the goods being then
and now overdue and not paid, the defendants have
right to retain the possession of the goods until
the price is paid rendered secondly, that if the
defendants had partedwith the actual possession
of the goods they cannot under the circumstances,
be regarded as having to the actual possession
of Mr.. Waterhouse, or having reached their
final destination, but still subject to the exer-
else of the right of stoppage in transu on the part
of Janion, Green & Co., the purchaser having be-
come insolvent. 1t is understood in the decision
of this controversy, that the rights of Janion,
Green Co., whatever they may be, are not to be
affected by the assignment made by Mr.. Water
house for the benefit of his creditors, but that the
difference is to be regarded and settled as if the
| same had arisen with Mr.. Waterhouse himself,
and not with his assignees.
In our opinion the decision of this case is not to
be controlled by the law of stoppage in transifu.
but by the law governing the right OF lien. The
right of stoppage IN transtu is properly exercised
only upon goods which are in passage, and are in
the hands of some intermediate person between the
vendor and the vendee, in process and for the pur-
pose Of delivery. (Story on Sales, Section 319 I;
Parsons on Contracts, Vol. l, page 476; Long on
Sales, PIP. III, 178; Smiths Mer. Law, PIP. GAS,
646, CAT and note Parsons Mer. Law, p. co.,
In order to the applicability of the law of stop
page IN trGnsitu, it is necessary that the goods
shall have left the possession of the vendor, and
not yet have arrived at their final destination, or
reached the possession of the vendee, but are In an
intermediate position, where, In case of the ven
dee's insolvency, the vendor may stop the goods
In their passage, and re-assume the possession OF
| them. We are aware that in some adjud ged cases,
reported the right of stoppage IN trGnsitu seems
to have been stated in broader terms, but, upon
examination, we are inclined to attribute this to
the inaccurate use of language, and want of at
the right to retain the possession and the right to
regain the possession, of the goods.
In the inquiry, as to whether or not the goods
have reached the place to which, by the understand
ing between the parties they were to be carried,
the unknown ulterior destination to be given to
the goods at some future time, according to cir
cumstances, does not form matter for considera-
tion but only the place contemplated as the
stopping place of the goods, for the present, and
as far as regards the original contract OF sale
(Story on Sales, section 1857 Upon the facts of
this case as agreed to and stated by the parties,
we must hold that, on the 9Th day Of May, when
the assignment was made by Mr.. Waterhouse to
the plaintiffs the goods in question, having been
placed, by mutual consent of the vendor and ven-
dee, upon that part of Janion & Green's store
leased to Mr.. Waterhouse, had reached their
final destination far as regards the contract oi