¶1It fully appears from the facts found by the decision of the court at special term in this case, that nothing remained to be done to separate and determine the subject of the agreement to sell, or fix its price, as well as. that no act of acceptance or dominion by the vendees, such as marking or the like, had been performed. There *51is also no question made of their solvency, so as to justify a stoppage in transitu; so that neither the delivery of such goods, nor the right of the plaintiffs to claim them, can be governed by any of such considerations. And the only questions left are whether the delivery by the plaintiffs to a carrier different from the one selected by the buyers was a delivery to them, and whether the right of the latter to elect to accept such goods as delivered to them was transferred to the sheriff by the judgment and execution against them and levy by him.
¶2The principle on which the delivery of goods by a vendor1 to a carrier to be transported to a distance and delivered to a vendee is considered as made to him, if it be so, can only rest on the presumption that the contract in such cases is something more than the mere sale and delivery of the goods; that it involves an agreement by the vendor to forward them and to select the agent by whom they are to be carried, who thus becomes the agent of the vendee to receive them. Where no restrictions are laid upon the vendor, he would in such case have a right to forward in the ordinary mode and select the usual common carriers engaged in transporting on the usual route for reaching their destination. There can be no delivery except in the mode fixed by the buyer or to his agent, or by his acceptance of the goods delivered. (Hague v. Porter, 3 Hill; 14Í.) Mere words are not sufficient, without some act either enabling the vendee to get possession of the goods or amounting to a transfer either of possession or evidences of title and its acceptance. (Shindler v. Houston, 1 N. Y. Pep. 261.) The mere setting apart goods in the vendor’s possession is not sufficient, (Id.;) and any decisions apparently to the contrary, (Brewer v. Salisbury, 9 Barb. 511, Dows v. Morewood, 10 id. 183,) must be considered as overruled. Even delivery to a carrier selected by the vendee has been held in England not to be sufficient to constitute a delivery to him, (Meredith v. Meigh, 2 EL & Bl. 364; Holmes v. Hoslcins, 9 Exch. 753 ;) or- even a delivery at a particular place selected by the vendee, where a previous *52separation of the articles was necessary. (Hunt v. Hecht, 8 Exch. 814.)
¶3The delivery by the plaintiffs to the Hudson River Railroad Company was no more than the deposit of the goods with any other person, to be delivered to the purchasers, would have been. Such company was the plaintiffs’ agent, and could not refuse to redeliver such goods to them on demand at any time before they reached the purchasers’ possession. The selection of the People’s Line of steamboats as the carrier, by the purchasers, necessarily destroyed any right on the part of the plaintiffs to select any other. It is even more than doubtful whether the vendees could have recovered for any loss of the goods by such carriers, although théy might have accepted and ratified such delivery. (Coombs v. Bristol R. R. Co., 3 Hurl. & Norm. 510. Coats v. Chaplin, 3 Adol. & El. (N. S.) 483. Angell on Carriers, §§ 496, 498.) In order to change the title to chattels, the delivery of them to the vendee or his agent duly authorized by him to receive them, whether actual or symbolical, must be final and irrevocable, saving the right of stoppage in transitu, and the acceptance must be complete and unconditional. (Jordan v. Norton, 4 Mees. & W. 153. Bell v. Bament, 9 id. 36. Parker v. Wallis, 5 Ell. & Bl. 21. Kent v. Huskinson, 3 Bos. Pul. 233. Dole v. Stimpson, 21 Pick. 384.) I am not aware of any principle which could convert a carrier, not only not selected by a vendee, but entirely different from the one selected by him, into an agent for him, to accept the delivery of goods.
¶4Nor do" I see how either the plaintiff in the judgment against the vendees, or the sheriff (the defendant) can be converted into their .agent to accept a delivery of the goods at the Hudson river railroad depot instead of on board one of the line of . steamboats. Until the acceptance of the goods by the buyers the bargain was not complete, and they could at any time have rejected the goods. None of their creditors could complete for them a mere inchoate purchase. The mere right of accepting or rejecting undelivered merchandise, and thus completing or repudiating a contract of purchase, was not a subject of levy *53or sale. The seizure by the defendant could not give the plaintiffs a right of action against the vendees for goods sold and delivered ; in a case where such goods were delivered not to any agent of theirs, constituted such expressly' or by implication of law, but in opposition to their express instructions.
¶5The seizure by the defendant cannot be justified, therefore, ■by any supposed actual delivery of the goods to any agent of the vendees, or inchoate delivery to them, or'any parting with the possession by the plaintiffs with intent to transfer the title and an acceptance thereof by the defendant as the agent of such vendees. But in fact the delivery of the goods to the railroad company was by mistake and contrary to the instructions of the plaintiffs to their cartman who carried them there. They were, as ■ regarded the plaintiffs, unlawfully in the possession of the company when seized, and the plaintiffs had a right to reclaim them in order to forward them by the proper means of transmission, which could alone bind the vendees. The defendant had no more right to take them in the depot, because it was that of a common carrier, than in any store • in the city, in which such cartman might have thought proper to deposit them.
¶6The question may still remain, however, how far the cart-man who received the goods to take to the steamboat, may be considered the agent of the vendee, or the common agent of buyer and seller, in transporting the goods to such steamboat. The plaintiffs seem to have treated him as an agent .of the vendees, by charging the expense of cartage to them in the bill- inclosed with the merchandise. Transportation either to a railway or a steamboat necessarily involved the employment of a cartman. The one employed, wilfully or accidentally took the goods to the wrong carriers ; the direction to him remains unrevoked, and they may be considered in law as still on their way to the right destination. Some custom may govern the cartman’s relation to the parties., But as the case stands, it must go back for a new trial. Judgment must be given accordingly.
¶7Ho question arises in this case upon the right of stoppage in transitu. Such right can only be exercised upon the insolvency of the vendees. It is in the nature of an equitable lien for the unpaid purchase money of goods, under which the vendor may repossess himself of the goods, upon the insolvency of the vendee ; it cannot be exercised at the mere caprice of the vendor when no such insolvency exists. (The Constantia, 6 Rob. Adm. 321.) Hor is there any question arising under the statute of frauds. That statute is invoked only when there is a breach of a contract of ■sale, by the vendor in refusing to deliver, or of the vendee in refusing to accept. A lien upon the goods for the price, exists in favor of a vendor so long as the goods remain in his possession. The lien ceases when the goods have passed out of the possession of the vendor.
¶8The only question in this case, therefore is, whether at the time of the levy the goods were out of the plaintiff’s legal possession. Within the decision in People v. Haynes, (14 Wend. 546,) the sale was complete without an actual delivery to the purchasers. In that case, the goods were selected by the purchasers, and directed to be forwarded to hiip at Boston, and to be sent on board the steamboat. The Chancellor says, (p. 563 :) “ The delivery of the hox on board the boat, to be sent on to the vendee’s residence, and detained there according to the directions on the box itself, was a valid delivery- of the goods, so as to divest the vendors of the possession, as well as of the title; leaving them the mere right of stoppage in transitu.”
¶9Except as affected by the statute of frauds, a bargain and sale of goods, without delivery, is sufficient to divest the vendor’s title and vest it in the purchaser. If the sale be for cash, the vendor has a lien for the price, so long as the goods remain in his possession, (Story on Gar. § 499,) but, where the sale is upon a credit, and there is no agreement in respect to the delivery or possession of the goods, the purchaser has at once a complete right, not only of property, but of possession. (1 Pars. on Cont. 440.)
¶10Delivery of goods to the vendee, either actual or construe*55tive, will not take the case out of the statute of frauds, as respects the vendee. There must he an acceptance of the goods by him. The seller is bound by his delivery, and cannot reclaim his goods ; but the buyer has his option to keep the goods, and pay for them, or return them and not pay. (2 Pars, on Cont. 322.)
¶11The distinction between a lien for the purchase price of goods, and the right of stoppage in transitu is clear. The former exist so long as the goods remain in the seller’s possession, and where the payment of the price is a condition precedent; no lien exists when the sale is on credit, and it ceases the moment the goods have passed out of the vendor’s possession. (Story on Cont. § 500.) The right of stoppage in transitu continues until the goods have arrived at their place of destination, and been transferred to the actual possession of the buyer. Possession is the test of a right of lien. Non-delivery to the vendee is the test of a right of stoppage in transitu. Although the right of stoppage continues until the goods have reached their destination, yet if the vendee meets them upon the road, and takes them into his own possession, the right of stoppage is lost. (Mills v. Ball, 2 B. & P. 457.) The right to intercept the goods in their passage is also affirmed in Oppenheim v. Russell, (3 B. & P. 42,) where Chambre, J. says: “ If goods are intercepted before the consignor has exercised his right of stoppage in transitu, and the purchaser takes an actual delivery from the carrier before the goods get to the end of their journey, such a delivery to him will be complete.”
¶12. As between the plaintiffs and Dunlop & Dutton, the sale was'eomplete. The goods were selected and the price agreed upon. Nothing remained to be done, except to deliver. The sale was on a credit. The goods were put in boxes, the boxes marked and directed to Dunlop & Dutton, at Lockport, and delivered to a eartman to be forwarded to their destination.
¶13There is no doubt, had the boxes, been delivered to the People’s line of steamboats, instead of to the Hudson river railroad, that the delivery would have been, complete. (People *56v. Haynes, supra. Waldron v. Romaine, 22 N. Y. Rep. 368.) The title, not only, but the possession also, would have passed to the purchasers, the plaintiffs’ lien for the price would have been lost, and they would have been left with a bare right of stoppage in transitu ; and such a delivery would have been sufficient to have taken the case out of the statute of frauds.
¶14The cartman who received the boxes, from the plaintiffs, delivered them, in violation of their directions, to the railroad company, instead of to the steamboat line. The cartman was selected by the plaintiffs, but the cartage was charged to Dun-lop & Dutton. When the boxes were delivered to the cart-man they passed out of the plaintiffs’ possession. The lien for the purchase money was gone, and the sellers could not reclaim their goods, except under the right of stoppage in transitu. And this is so, although the purchasers were not bound to accept, and might refuse to accept. For the purpose of changing the actual possession, the delivery to the cartman was sufficient. Per Tracy, senator, (People v. Haynes, supra, 565.)
¶15If the question arose between Dunlop & Dutton and the plaintiffs, and the former were seeking to compel a delivery of the goods bargained and sold, it might be that the delivery to the cartman, or the delivery by him, in opposition to the plaintiffs’ direction, would not take the case out of the statute. But no such question arises here, and I think there is no doubt that Dunlop & Dutton could have intercepted the goods at 31st street, and accepted a delivery there, even against the consent of the carrier. (Mills v. Ball, Oppenheim v. Bussell, supra.) And such acceptance would have taken the case out of the statute. But the statute of frauds is not involved. The simple question is, whether the delivery to a cartman, and a deposit by Mm, with the railroad company, although in violation of the plaintiffs’ directions, was such a disposition of the goods as would deprive the plaintiffs of their lien for the purchase money.
¶16I shall not contend that if the goods had been lost, the vendees would be liable. The delivery to a carrier other than the *57one selected by them would probably relieve them from liabilty. But it does not lie with the plaintiffs to say that the purchasers shall not have their goods because they, the plaintiffs, undertook to forward them by a different conveyance. They took the risk of the goods reaching their destination, but they could not disaffirm the sale on that account, For as we have seen, Dunlop & Dutton could have intercepted and accepted the goods at any intermediate place; and their acceptance would have, made the sale and delivery complete.
¶17In all the numerous cases to which we have been referred upon the subject of constructive delivery, the question has arisen under the statute of frauds, or in cases where it has been sought to cast the burthen of loss upon the purchaser. Ho case can be found, where the vendor has undertaken to deliver, and parted with the possession, which holds that he may reclaim or retake possession, except under the right of stoppage in transitu. Upon principle he has no such right. The bargain and sale was complete, and except for the statute of frauds, the purchasers could have claimed a delivery anywhere, even in the plaintiffs’ storehouse. Shall they be allowed to avail themselves of their own wrongful act, in transmitting the goods by a different carrier to deprive the purchasers of their right to receive them ? I think not. The sale on credit; the packing the goods selected by the purchasers; boxing and directing them and putting them in transit, was all the plaintiffs could do to consummate the sale. That they did all this, or any part of it, imperfectly, or in a manner different from the instructions of the purchasers cannot enlarge or prolong the lien, or defeat the right of the latter to claim acceptance.
¶18If the plaintiffs’ lien was gone and the • purchasers could accept delivery anywhere, as I think I have shown they could, then the only remaining question is, were the goods, while in transit, subject to levy and sale under an execution issued upon a judgment against Dunlop & Dutton ?
¶19The judgment creditor of Dunlop & Dutton was entitled to succeed to all their rights and interests, and to reach, by process, all their property. The defendant, by authority of *58the execution, could seize any property of the judgment debtors and could sell any and all their interests. The purchaser would acquire all the interests and rights of the debtors. If the title was conditional, the purchaser could perform the condition and get a good title, as upon the sale of personal chattels mortgaged or pledged. (Strong v. Taylor, 2 Hill, 326, 328.)
¶20It was competent for the sheriff to seize the goods in transit, as the property of Dunlop & Dutton, and the act of seizure was an act equivalent to the actual acceptance by them.
¶21In Buckley v. Furniss, (15 Wend. 137,) the goods were ¡purchased in Troy and were in transit to the purchaser at Titus-ville. They were levied upon by the sheriff, at Malone, eight miles from their destination, under an execution against the purchaser. The vendors sued the sheriff, claiming the goods under their right of stoppage in transitu, and the court sustained the claim, on the ground that the goods had not reached their destination, or come to the actual possession of the vendee, and the right of stoppage in transitu was not lost. The court say: “ The defendant Furniss, as an attaching creditor, could have no better right to the goods than Titus (the vendee) had himself. * * * The process does not proceed on the ground of defeating a prior right in a third person, but on the ground of acquiring such interest in the property attached as the debtor had himself.” In Le Ray De Chaumout v. Griffin, cited in 15 Wend, at p. 144, it is said that the judgment creditors, represented by the sheriff, had no better right to the iron than the purchasers had themselves, and that the plaintiff clearly had the right to stop the goods notwithstanding the levy. To the same effect is Covell v. Hitchcock, 23 Wend. 611. I cite these cases as showing, inferentially at least, that although the sheriff, as the representative of the creditors, had no better right to the property than the purchaser had, yet that he had the same right. And also that such right, whatever it may be, is subject to levy, while in transit, and which levy can be defeated by the exercise of the right of stoppage in transitu.
¶22*59It seems to me, therefore, that if any acceptance of the 'goods, by Dunlop & Dutton, was necessary to complete their title, such acceptance was exercised by the sheriff in making the levy. But as I do not think, an actual acceptance was necessary I will not discuss the question. By the sale and delivery to the cartman, the plaintiffs became dispossessed of the goods ; they lost their lien upon them for the purchase money, and they cannot avail themselves of the mistake of the cartman in shipping, to regain possession, or to prevent a delivery.
¶23I think the judgment was right and should be affirmed.
¶24New trial granted.