The right of stoppage in transitu exists until the goods are delivered to the buyer, or possession actual or constructive is taken by him. The goods were sold by the plaintiffs to Sanborn at Boston, and sent to him at Penacook, N.H., by railroad, by three different shipments, arriving there October 10th, 25th, and 28th. A part of each shipment had been taken from the freight station by Sanborn before his failure, November 5th, when the residue was attached by this defendant on a writ against Sanborn, and replevied by the plaintiffs. No part of the freight had been paid. October 26, after a part of the goods had been taken, the station agent demanded the freight, and upon Sanborn's neglecting to pay it, the agent determined to hold the remainder of the goods for the payment of the freight, but did not inform Sanborn of his intention.
No part of the goods was formally delivered to Sanborn. The rule of the railroad, known to Sanborn, required the payment of freight before the goods were delivered; but prior to the reception of the goods in controversy, the agent had allowed him, after goods consigned to him were deposited in the freight-house, to take a part or all without any formal delivery, intending to collect the freight while goods of sufficient value to secure it remained in the possession of the railroad; but this was not always done, as he had previously paid his freight bills promptly on demand. Occasionally Sanborn left his goods in the depot a few days after he had paid the freight. The goods were together at the freight station, and the agent knew when Sanborn took away a part of each of the three shipments, and made no objection.
The goods had reached their ultimate destination, and according to the previous and customary course of dealing were so far within the control of the consignee that he was at liberty to take away any that he chose, and he had taken away a part of each shipment. The selection of the goods removed was not determined or controlled by any restriction upon the consignee's right of removal. The goods remaining at the freight station were left there, not because *Page 569 of the consignee's neglect or refusal to accept or his inability to take them (Inslee v. Lane, 57 N.H. 454, Reynolds v. Railroad, 43 N.H. 580), but because he did not choose to remove them at that time. They were left voluntarily and temporarily, as a matter of convenience to the consignee. By the previous course of dealing the rule of the railroad requiring payment of freight as a condition precedent to delivery had been waived, and Sanborn had been allowed to use the freight station for the temporary storage of goods consigned to him, taking them away as he wanted them. A portion of the goods had been at the station nearly a month, and the last shipment arrived eight days before the attachment. The railroad allowed the goods to remain there for Sanborn's accommodation, holding them as his agent and not as carrier. Its duties and its liabilities as carrier and insurer had terminated, and its responsibility was that of warehouseman only. Moses v. Railroad, 32 N.H. 523; Smith v. Railroad, 27 N.H. 86. The customary course of dealing is presumed to continue, and both the carrier and the consignee must have understood that the goods remained at the freight station as the goods of the consignee, at his risk and subject to his order and control, notwithstanding the undisclosed purpose of the agent, at the time of the attachment, to hold the balance of the goods until the freight was paid. "The carrier's change of character into that of an agent to keep the goods for the buyer, is not at all inconsistent with his right to retain the goods in his custody till his lien upon them for carriage or other charges is satisfied. Nothing prevents an agreement by the master of a vessel or other carrier to hold the goods after arrival at destination as agent of the buyer, though be may at the same time say, I shall not let you take them till my freight is paid." Benj. Sales (4th Am. ed.) s. 1270.
If the existence of a carrier's lien, without other evidence, authorizes an inference that he holds the goods as carrier and not as warehouseman, such an inference is controlled and rebutted in this case by the previous course of dealing between the carrier and the consignee. The capacity in which the railroad held the goods is a question of fact, that might depend largely or wholly upon the understanding and intention of the railroad and Sanborn (Benj. Sales, ss. 1264, 1270), and could have been properly determined at the trial term in favor of the defendant. As to some or all of the goods, there may be a question whether there is any evidence of a right of stoppage in transitu, and whether a decision in favor of the plaintiffs could be sustained. The case having been submitted for such judgment as should be ordered at the law term, there being no conflict of evidence, and it being clear that the transitus was at an end when the attachment was made, there seems to be no occasion for another trial.
Judgment for the defendant.
BINGHAM, J., did not sit: the others concurred. *Page 570