DELIVERY AND PAYMENT. 



27 



to be defeated if he becomes bankrupt before he obtains 

 possession (q). 



The sale of a specific chattel on credit, though that 

 credit may be limited to a definite period, transfers the 

 property in the goods to the vendee, giving the vendor a 

 right of action for the price, and a lien upon the goods, 

 if they remain in his possession, till that price be paid, 

 but default of payment does not rescind the contract (r). 



The seller of goods has not only a lien on them for the 

 price, whilst they are in his possession, but when the price is 

 unpaid he may, after he has parted with the possession of 

 the goods, and whilst they are in transitu, retake them in 

 the event of the bankruptcy or insolvency of the buyer (.s) . 



Stoppage in transitu, as its name imports, can only take 

 place whilst the goods are on their way to the buyer ; and 

 the rule to be collected from the cases is, that they are in 

 transitu so long as they are in the hands of the carrier as 

 such (t), and also so long as they remain in any place of 

 deposit connected with their transmission (u). 



A contract of sale is not generally rescinded by the 

 mere exercise by an unpaid seller of his right of lien or 

 retention or stoppage in transitu. But where the seller 

 expressly reserves a right of re-sale in case the buyer should 

 make default, and on the buyer making default, re-sells 

 the goods, the original contract of sale is thereby rescinded, 

 but without prejudice to any claim the seller may have 

 for damages {v). 



In a contract for the sale of goods, " the goods to be 

 dehvered at the works forthwith, and to be paid for 

 within fourteen days from the date of the contract," the 

 delivery of the goods is a condition precedent to the right 

 of the seller to claim the payment of the purchase-money. 

 The use of the word " forthwith " shows that the goods 

 ought to have been, and that the parties intended that 



Seller's lien 

 during pos- 



His right of 

 stoppage in 

 transitu. 



When goods 

 are held to be 

 in transitu. 



Effect of 

 stoppage in 



Goods to be 

 deliyered be- 

 fore payment. 



(y) Ibid. ; Tooke v. HoUingsworth, 

 5 T. E. 215; 2 R. E. 573; £x 

 parte Chalmers, L. E., 8 Ch. App. 

 289. 



(r) See per Cur., Martindale t. 

 Smith, 1 U. B. 395 ; Tarlitig v. 

 Baxter, 6 B. & C. 362 ; Ex parte 

 Chalmers, 8 Ch. App. 289 ; Sale of 

 Goods Act, 1893, s. 41. 



(«) Liekbarrow v. Mason, 2 T. E. 

 63; Sale of Goods Act, 1893, ss. 

 39, a. 



[t) Whitehead T. Anderson, 9 M. 



few. 518. 



[u) Edwards v. Brewer, 2 M. & 

 "W. 375 ; Kendal v. Marshall, 11 

 Q. B. D. at p. 365, per Brett, M. E. 

 See also Sale of Goods Act, 1893, 

 s. 45. 



(«i) Sale of Goods Act, 1893, 

 s. 48, sub-ss. (1), (4) ; see also 

 Wentimrth v. Outhivatte, 10 M. & 

 W. 452 ; Kemp v. Falk, 7 App. Cas. 

 at p. 581, per Lord Blackburn; La- 

 mond T. JJavall, 9 Q. B. 1030 ; 16 

 L. J., Q. B. 136. 



