Hodgson v. Loy (a), and Fife v. Wray (b), where part payment of the goods was holden not to divest the vendor's right to stop in transitu; and, * a fortiori, it cannot divest his lien upon the goods while they still continue in his possession; for Lord Kenyon himself put it upon that ground; saying, "That the right of the vendor to stop goods in transitu, in case of the insolvency of the vendee, was a kind of equitable lien adopted by the law for the purposes of substantial justice, and that it did not proceed on the ground of rescinding the contract. Then it cannot vary the case that the goods here were in the hands of a middleman; for they remained all the time in the Bull Porters' warehouse, in the vendor's name, and at his expence. In the cases in the Common Pleas there was a severance by the vendees themselves of part of the goods from the rest, which could not have been done without a possession of the whole by them, so as to bar the vendor's right of stopping any part as in transitu; and in Hammond v. Anderson (c), there was this further material circumstance, that all the goods had been weighed out to the vendee; but cases of trunsitu do not affect the question. of lien, which can only arise while the goods are in the actual or constructive possession of the vendor. Liens are mutual; and a sale is only an exchange of goods for money; but if a delivery of part of the goods contracted for, without payment, be a waver of the vendor's lien for the price, then by payment of part of the money by the purchaser, he would wave his lien on the remainder, which might be recovered from him by action without a delivery of the goods. Suppose an exchange of two horses for one, would a delivery of one of the two preclude the owner's lien on the other till the delivery of the one horse for which the two were to be exchanged? There is no distinction in reason between an exchange of goods for goods, and of goods for money. If an action be brought by a vendee, after part of the price of goods paid, he must allege that he had or offered to pay the remainder. The principle is general, that he who sues another for a breach of contract must aver performance, or what is equivalent to performance on his part; (a) 7 Term Rep. 440, 5. (b) 3 East, 93. (c) 1 New Rep. 69. as 1805. HANSON and Another, Assignees, &c. against MBYER. * [ 621 ] [622] 1805. HANSON as in Morton v. Lamb (a), and Collonel v. Briggs (b); and, therefore, the vendor of goods has a lien on any part of them and Another, for the price of the whole: he only lessens his security by Assignees, &c. delivering up any part before payment.. Thus in Sodergren against MEYER. [ 628 ] v. Flight and Jennings, before Lord Kenyon at Guildhall, sittings after Trin. term 1796, in an action for freight, it ap peared that the plaintiff was the captain and owner of a Swedish ship freighted by Shenling and Co. for London, with a cargo of tar and iron, consigued to Hippius, a merchaut in London, who held two bills of lading for the same. The defendants in December, 1795, before the arrival of the ship, purchased all the tar of Hippius, and gave him their acceptances for the value, including a proper allowance for freight and duty, which were to be paid by Hippius: and Hippius indorsed the two bills of lading to the defendants, or their order; one of which was for tar alone, 900 barrels; the other for $50 barrels of tar, and a quantity of iron. Hip pius sold the iron to Crawshay and Co. and for this purpose obtained from the defendants the possession of the bill of lading which included the iron, and delivered it to Crawshay and Co.; concerning which there was no question. On the 11th January, 1796, the ship arrived, and was entered and reported by Hippius; and before the 25th, 721 barrels of tar were delivered to the defendants. On that day Hippius stopped payment; on which the captain refused to deliver the remainder of the tar to the defendants, unless they would pay the freight not only of what remained, but of what had been before delivered, which they refused to do but after some dispute, the whole cargo of tar was agreed to be delivered to the defendants, and that an action should be brought by the captain for the whole freight, in order to try the right of his lien; the defendants having offered to pay the freight of that which remained on board the ship but refusing to pay the freight of that part which had been before delivered to them, and also of a certain portion which had been delivered out of the ship on board a lighter sent by the defendants to receive it, but which still lay along-side of the ship, fastened thereto by ́(b) Salk. 112. (a) 7 Term Rep. 125. the 1805. HANSON and Another, Assignees, &c. against METER. the captain's orders, to prevent its final removal. The de. fendants paid into court in the action 3531. Is. 2d. being as much as would cover the plaintiff's demand for freight on all the tar comprized in one of the bills of lading; and each being made "unto order, he or they paying freight for the said goods; and the plaintiffs, under the direction of Lord Kenyon, recovered 300 l. 15s. 10d. beyond the money paid into court, being the entire amount of the freight for the tar; his Lordship being of opinion that the captain had a lien on the tar remaining on board for the whole freight, as well the freight of the barrels delivered as of those rcmaining on board, belonging all to the same person, and under one consignment; but he thought that if Hippius had sold the tar to different persons, the captain could not have made one pay for the freight of what had been delivered to another. [Le Blanc, J. That was where all the goods were received on board under one contract.] So in Langfort v. Administratrix of Tiler (a), the defendant in the lifetime of the intestate, her husband, having bought of [624 } the plaintiff four tubs of tea, one of which she paid for and took away, leaving 501. earnest for the other three,-Holt, C. J. held, That notwithstanding the earnest (which only bound the bargain, and gave a right to demand the rest on payment of the money) the money must be paid upon fetching away the goods, because no other time for payment was appointed; and that if the vendee did not come and pay for the gools in a reasonable time, after request, the agreement was dissolved, and the vendor was at liberty to sell them to any other person. In detinue (b), where there had been a part delivery of a certain quantity of corn contracted for, and payment for what was so delivered, the Court considered that the vendor had a lien upon the remainder for the residue of the money, and was not bound to deliver it till payment, and might plead non detinet : and the distinc. tion was taken, that if goods be bought outright, the bar (a) Salk. 113. The same case is reported in 6 Mod. 162, where the case is stated to be, that the goods were contracted to be sold by the defendant to the plaintiff, who paid for one of the tubs, and gave gos. earnest for the remainder; and the declaration contained two counts, one on the agreement, as it appears for the non-delivery of the other tubs; the other, to recover back the gos. as so much received to the plaintiff's use. The result of the doctrine is the same in both books. (b) Anonym. Dy, 29, 4. gain 1805. HANSON and Another, Assignees, &c. against MEYER, [ [ 625 ] gain is void if the vendee do not pay the price agreed upon immediately; but if a day of payment be appointed, the vendor shall have his action of debt, the vendee an action of detinue. As to the position in Dumpor's case (b), that a condition waved in part is waved in toto, it cannot apply to liens which at most are only conditions in law founded on principles of equity, and not like conditions stipulated for by the parties themselves, which are always construed strictly, being in general to defeat an estate or create a forfeiture. Humphreys, in reply, said, That the property was altered by a sale, as well where a future day of payment was given, as where the goods were paid for at the time. 1 Com. Dig., 513, Agreement, B. 3, cites 10 H. 7, 8, a. 14 H. 8, 20, a. Dy. 30, a. It is true the vendor might have withheld the order for delivery till be received the bill which was agreed to be taken for payment; but he waved that benefit, and gave an order for the delivery of the whole. Then the severance of a part was as much evidence of a possession of the whole by the vendee in this case, as in the late cases in the Common Pleas. Those cases went on the ground that the sale of the goods being by one entire contract, pos session of part was possession of the whole, out of which such part was taken; and if the property passed by the contract, the payment of the warehouse rent afterwards by the vendor cannot alter it. Cur. ado. oult. Lord ELLENBOROUGH, C. J. now delivered judgment. By the terms of the bargain, formed by the broker of the bankrupts on their behalf, two things, in the nature of conditions or preliminary acts on their part, necessarily prereded the absolute vesting in them of the property con tracted for; the first of them is one which does so according to the generally received rule of law in contracts of sale, viz. the payment of the agreed price or consideration for the sale. The second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. (a) 4 Rep. 119. b. The 1805. FANSON and Another, Assignees, &c. * against MEYER. The weight, therefore, must be ascertained, in order that the price may be known and paid; and unless the weighing precede the delivery it can never for these purposes effectually take place at all. In this case a partial weighing and delivery of several quantities of the starch contracted for had taken place; the remainder of it was unweighed and [ 626 ] undelivered; and of course no such bill, of two months for the price so depending on the weight could yet be given. The question is, What is the legal effect of such part-delivery of the starch on the right of property in the undelivered residue thereof? On the part of the plaintiffs, it is contended, That a delivery of part of an entire quantity of goods contracted for, is a virtual delivery of the whole, so as to vest in the vendee the entire property in the whole'; although the price for the same should not have been paid. This proposition was denied on the part of the defendant; and many authorities have been cited on both sides: but, without deciding at present what might be the legal effect. of such part-delivery in a case where the payment of price was the only act necessary to be performed in order to vest the property; in this case another act, it will be remembered, was necessary to precede both payment of price and delivery of the goods bargained for, viz. weighing. This preliminary act of weighing, it certainly never was in the contemplation of the sellers to wave in respect of any part of the commodity contracted for. The order stated in the case from the defendant to the Bull Porters, his agents, is to weigh and deliver all his starch. Till it was weighed, they as his agents were not authorized to deliver it; still less were The buyers themselves, or the present plaintiffs, their assignees, authorized to take it by their own act from the Bull Porters' warehouse: and if they could not so take it, neither can they maintain this action of trover, founded on such a supposed right to take; or, in other words, founded on such a supposed right of property in the subject-matter of this action. If any thing remain to be done on the part of the seller, as between him and the buyer, before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer; and of course this action, which is accommodated to and depends on such supposed perfect right of property, is not maintainable. The [ 627 ] |