[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 311 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 313 The plaintiffs had a lien on these fifty barrels of flour for the purchase price, and, upon the insolvency of Poucher, they might have retained them until the price agreed upon had been paid. This they no doubt would have done if they had heard of the insolvency of Poucher. This right of withholding the property is not precisely the same thing as the right of stoppage intransitu, but it has a strong analogy to it. Where the vendee could stop the goods while in the hands of the carrier, he can retain them in his own possession if he has not delivered them to the carrier. But in this case the goods were sent to the defendants at Troy. I understand them to have been storehouse keepers, though this is not expressly stated. At any rate they were made the depositaries of the goods on their arrival at Troy, and they had no other right to them so far as the plaintiffs were informed. Their possession was not, under the circumstances, the possession of Poucher. They were third parties, who were to take and hold the goods on their arrival at Troy, not as Poucher's agents, but in the character of warehouse keepers. It was not the intention of the plaintiffs that the deposit with them should be an absolute delivery to Poucher. An arrangement as to the payment was to be first made. Stiles lived at Cohoes, near Troy, and could confer with Poucher any day. Poucher had agreed to take back the fifty barrels of flour at the price proposed, and had offered to give his paper at twenty-five and forty-five days for that price. The plaintiffs had not assented to this part of the proposal. On the contrary, the partner who wrote the letter *Page 315 in their name of the 8th January, 1857, said that, in regard to that part of the proposal which looked to the giving of Poucher's paper on time, he should leave it altogether with him, Poucher, and Mr. Stiles, to arrange. The effect of the transaction was that the flour should be forwarded to the defendants to abide the result of the arrangement to be made respecting the credit to be given, if Stiles should think proper to give a credit. If Stiles and Poucher had conferred together at any time after the failure of the latter, no credit would have been given without security. But without any attempt to answer the terms of payment or of credit, Poucher and the defendants contrive, so far as they were able to do it, to vest the title in the defendants. But Poucher could not confer upon the defendants any better title than he had, and he had none until he had arranged the terms of payment with Stiles. Until that should take place the flour was in the hands of the defendants as warehousemen.
It may be said that as the plaintiffs sent the flour as requested by Poucher, it was a perfect delivery to him, and vested the property in him. I doubt whether that is a fair construction of Poucher's own letter. He wished the flour sent to the defendants, not as parties who were entitled to it under an arrangement with him; no arrangement by which they were to have it had then been made, and if it had been it had not been communicated to the plaintiffs. I do not think Poucher contemplated an immediate absolute delivery. Upon his own proposal he was to give his paper on time, and as Mr. Stiles lived in his neighborhood he doubtless expected to deliver the notes to him before he should be entitled to the flour. The words "my care" do not necessarily mean on my account or for my use. But however this may be, and if the letter ought to be understood as looking to a delivery which should give Poucher the control of the property on its arrival, the plaintiffs did not assent to it in that sense, but required the terms of payment to be arranged in the manner mentioned, before Poucher should be entitled to the flour.
The facts upon which the plaintiffs' rights depended were *Page 316 undisputed, and the Judge was, in my opinion, right in directing a verdict in their favor. Hence I am for affirmance.