One who sells provisions is always considered in law as warranting that they are good and wholesome.

SECTION VI.

OF THE SALE OF ONE'S BUSINESS.

SUCH sales are not unfrequent in this country; and the seller always agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, anywhere, that is, without any limitation of space or time. But the contract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be, is not certain. The courts say they must be "reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a certain State. This may not be quite certain, although, in one case in Massasetts, a contract not to use certain machines in any of the United States except two, (which were Massachusetts and Rhode Island,) was held valid, all of the States but two being considered as a sufficiently defined or limited place; but this was unusual. We should expect that the courts generally would sanction such a bargain, if it were limited to only a part of the United States; as to all New England, for example.

In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages; and such a bargain, if it were reasonable, would be enforced by law. Such damages, agreed on beforehand, are called liquidated damages. Generally, it is the duty of the jury to determine, from the evidence before them, what damages an injured party has suffered, and what amount would indemnify him.

CHAPTER VII.

STOPPAGE IN TRANSITU.

HERE is an instance where a Latin phrase has become English, by general adoption and use In transitu means "in the transit," and the English phrase may just as well be used; but the Latin one is used much oftener. What the whole phrase Stoppage in transitu means, is this. A seller, who has sent goods to a buyer at a distance, and after sending them finds that the buyer is insolvent, may stop the goods at any time before they reach the buyer. His right to do this is called the right of Stoppage in transitu.

The right exists only between a buyer and seller. A surety for the price of the goods, bound to pay for them if the buyer does not, has not this right. But one who is substantially a seller has; thus one ordered by a foreign correspondent to buy goods for him, and then buying them in his own name and on his own credit, and sending them as ordered, may stop them in transitu. So may a principal who sends goods to his factor, or one who remits money for any particular purpose. The fact that the accounts are unsettled between the parties, and the balance uncertain, does not defeat the right; nor does the reception and negotiation of a bill for the goods, or actual part payment.

If the goods are sent to pay a precedent and existing debt, they are not subject to this right.

The right exists only upon actual insolvency; but this need not be formal insolvency, or bankruptcy at law; an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, we think, by a tender of adequate security, if the sale be on credit. And if the sale be on credit without security, by agreement, then the seller can stop the goods and demand

6

security only for actual and sufficient cause, and takes this risk on himself.

The stoppage must be effected by the seller, and evidenced by some act; but it is not necessary that he should take actual possession of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or whoever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the person who has the immediate custody of the goods; or if to the principal whose servant has the custody, then at such a time, and under such circumstances, as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee. Therefore, where timber was sent from Quebec, to be delivered at Port Fleetwood in Lancashire, England, a notice of stoppage given to the ship-owner at Montrose, while the goods were on their voyage, whereupon he sent a letter to await the arrival of the captain at Fleetwood, directing him to deliver the cargo to the agents of the vendor, - was held not to be a sufficient notice of stoppage in transitu.

They can be stopped only while in transitu; and they are in transit only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient; as by being placed on the wharf of the buyer, or on a neighboring wharf with notice to him; or in a warehouse with delivery of the key to him, or of an order on the warehouseman. Thus, where goods were shipped at Troy, N. Y., directed to the purchaser at Vergennes, Vt., and were landed upon the wharf at Vergennes, half a mile from the purchaser's place of business. The purchaser's goods were usually landed at the same place, and it was not customary for the wharfinger, or the carrier, or any one for them, to have any care of the goods after they were landed; but the consignee was accustomed to transport the goods from the wharf to his place of business; as was also the custom with other persons i having goods landed there. The goods, while on the wharf, were not subject to any lien for freight or charges. It was held that a delivery on the wharf was a constructive delivery to the vendee, and that the right of stoppage was gone when

the goods were landed. But the entry of the goods at the custom-house, without payment of duties, does not terminate the transit. If the buyer has demanded and marked them at the inn where they had arrived on the termination of the voyage or journey, personally or by his agent; or if the carrier still holds goods, but only as the agent of the buyer; in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and discharge the lien, and then stop the goods in transitu. And the master of a ship, which the buyer hires or owns, may be a carrier, in whose hands the seller may stop the goods, if they are to be delivered finally to the buyer himself; but if they have been put on board the buyer's ship, to be transported, not to him, but by his order to another place, they will never be any more in his possession than they are when first put on board; and therefore they are so far in his possession, as soon as on board, that there can be no stoppage in transitu.

If the buyer has, in good faith and for value, sold the goods, before he has received them, and in expectation of their arrival, and indorsed and delivered the bill of lading, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller may stop the goods, and hold them subject to this security, and need pay only the specific advances made on their credit, or on that very bill of lading, and not a general indebtedness of the first purchaser to the second.

A seller who stops the goods in transitu does not rescind the sale, but holds the goods as the property of the buyer; and they may be redeemed by the buyer or his representatives, by paying the price for which they are a security; and if not redeemed, they become absolutely the seller's, in the same way as a pledge might become his; and if he fails to obtain from them the full price due, he has a claim for the balance upon the buyer.

The exercise of this right is necessarily adverse to the buyer; for if the goods are taken by the seller, by agreement with the buyer, it is no longer a stoppage in transitu. An honest buyer,

apprehending bankruptcy, might wish to return the goods to their original owner; and this he could undoubtedly do, if they have not become distinctly his property, and the seller his creditor for the price. But if they have, the buyer has no more right to benefit this creditor by such an appropriation of these goods, than any other creditor by giving him any other goods.

It has been questioned whether, when goods sold are sent by the seller to the buyer by any regular and usual conveyance, the vendee may go forward to meet them, and take possession of them before the time of their regular delivery, and thus abridge, by his own act, the right of stoppage of the seller. But it seems that he may do this, and that the right of stoppage in transitu is terminated by the buyer's thus taking possession of the goods.