DELIVERY TO A COMMON CARRIER 191 



rier and the vendee until the draft is accepted. It has been 

 said that a prepayment of freight by a vendor on goods sold 

 and shipped is prima facie evidence of an intention on the 

 part of the vendor to retain title to the property while in 

 transit. : Under a contract providing for an inspection and 

 count of staves by the purchaser at his railroad point, it was 

 held that the shipper retained title until acceptance of the 

 property by the vendee. 2 



The duty of a common carrier to deliver timber products 

 to the right person, unless prevented by an act of God or by 

 a public enemy, is absolute. 3 If a consignee refuses or 

 fails to accept the lumber or other timber product, it is the 

 duty of the carrier to notify the consignor and hold the goods 

 for a reasonable time; 4 but if the shipper is himself the con- 

 signee, a refusal to accept constitutes an abandonment, and 

 the shipper cannot later hold the railroad for conversion. 5 



135. Right of Stoppage. If full title to the lumber 

 or other product has not already passed to the consignee, the 

 consignor usually has what is known as the right of stoppage 

 in transitu, as a protection against loss through insolvency 

 of the consignee. This right, which is merely an extension 

 of a vendor's lien, exists until actual delivery is made from 

 the carrier to the consignee or his vendee. 6 Thus it was 

 held in one case that the holding of lumber in storage for 

 several months by the carrier and the acceptance by the ship- 

 per of the notes of the insolvent consignee did not destroy 

 the right of stoppage, 7 and in another that the holding of 

 lumber by a railroad company because the consignee failed 

 to accept and pay the freight, and a subsequent arrangement 

 by which the railroad agreed to purchase the lumber and 

 credit its value on a debt owed to it by the consignee did not 

 operate to defeat the consignor's light of stoppage in 

 transitu. 8 In another case in which lumber consigned to 

 one who had made false statements to a commercial agency 



1. A. J. Neimeyer Lbr. Co. v. Burlington & Mo. Riv. R. R. Co., 54 Neb. 321. 



2. Miller v. Somerset Cedar Post & Lbr. Co. (Ky.) 51 S. W. 615. 



3. Oskamp v. Southern Express Co. (Ohio) 56 N. E 13. 



4. Bailments, Inc. Carriers, Schouler, ed. 1905 (Boston) Sec. 399, p. 240. 



5. Beedy v. Pacey (Wash.) 60 Pac. 56. 



6. Branan v. Atlanta & West Point R. R. Co. (Ga.) 3 S. E. 836. 



7. Brewer Lumber Co. v. Boston & Albany R. R. Co. (Mass.) 60 N. E. 548. 



8. Wheeling & Lake Erie Ry. Co. v. Koontz et at. (Ohio) 54 N. E. 471. 



