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seller exercises the option, still such annulment may not operate as a technical rescission of the entire contract, remitting the parties to the position occupied by them before the contract was made. Whether it shall operate as such a rescission, or shall operate only to discharge the party exercising the option from further obligation to comply with the contract, leaving the party in default still liable in damages for his breach of the contract, depends "upon all the circumstances, including the effect of a complete rescission upon the rights of the parties, and the probability or improbability that the party exercising the option intended such a result." 2

431. Injured Party's Choice of Remedies. - Although one party to a sale contract may be entitled to rescind it, because of the other's breach, he is not bound to do so. He may pursue either of three courses. "(1) He may treat the contract as rescinded, and recover upon quantum meruit, so far as he has performed; or (2) he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified for performance sue and recover under the contract; or (3) he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for damages for a breach.” 3

1 Earnshaw v. Whittemore, 194 Mass. 187, 192; 80 N. E. 520 (1907). 2 Hayes v. City of Nashville, 80 Fed. 641; 47 U. S. App. 713; 26 C. C. A. 59 (1897); Burdick's Cases on Sales, 735; Mayor, etc. of New York v. N. Y. Refrigerating Co., 146 N. Y. 210; 40 N. E. 771 (1895); Reiger v. Turley, 151 Ia. 491; 131 N. W. 866 (1911); J. K. Armsby Co. v. Gray's Harbor Com. Co., Ore. -; 123 Pac. 32 (1912).

Lake Shore & M. S. Ry. v. Richards, 152 Ill. 59, 80; 38 N. E. 773; 30 L. R. A. 33 (1894).

APPENDIX I.

TYPICAL STATUTE OF FRAUDS PROVISIONS IN AMERICA.

MASSACHUSETTS: Public Statutes, Title XIII. ch. 78, § 5. "No contract for the sale of goods, wares, or merchandise, for the price of fifty dollars or more, shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." 1

NEW YORK: Revised Statutes, Vol. 2, Title 2, §§ 3-6. § 3. Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless,

1. A note or memorandum of such contract, be made in writing, and be subscribed by the parties to be charged thereby or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action: or 3. Unless the buyer shall, at the time, pay some part of the purchase money."

§ 4. Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale-book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the last section.

§ 5. Every sale made by a vendor, of goods and chattels in his possession, or under his control, and every assignment of goods

Michigan, General Statutes of 1882, § 6187, accord. • Minnesota, General Statutes of 1894, § 4210, accord.

and chattels, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.

§ 6. The term "creditors," as used in the last section shall be construed to include all persons, who shall be creditors of the vendor or assignor, at any time whilst such goods and chattels, shall remain in his possession or under his control.

CALIFORNIA: Code of Civil Procedure, § 1973. — “In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evi dence of its contents.

"4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made at auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale is made is a sufficient memorandum.”1

IOWA: Code. Title XXIII. ch. 1. Of Evidence, § 4625. "Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or by his authorized agent:

"1. Those in relation to the sale of personal property, when no part of the property is delivered and no part of the price is paid:

"4. Those for the creation or transfer of any interest in lands, except leases for a term not exceeding one year."

1 Oregon: Hill's Annotated Laws, § 785; and North Dakota, Civil Code, § 3887, reproduce the California provisions with some modifi. cations.

POSSESSION AS EVIDENCE OF TITLE.

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The French Civil Code. - Art. 2279. In the case of movables, possession is equivalent to a title. Nevertheless, the party who has lost anything, or from whom it has been stolen, may reclaim it within three years from the day of the loss or robbery, against the party in whose hands he finds it; saving to the latter his remedy against the person from whom he obtained it.

Art. 2280. If the actual possessor of the thing stolen or lost has purchased it in a fair or market, or at a public sale, or from a shopkeeper dealing in similar articles, the original owner can only have it restored to him on repaying the possessor the price which it cost him.

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The German Civil Code.1 935. Ownership may not be acquired under 932 to 934, if the thing has been stolen from the owner, or has been lost, or has otherwise become missing. These provisions do not apply to money or instruments to bearer,2 nor to things which are alienated by means of public auction. 1066. It is presumed in favor of a possessor of a movable that he is owner of such movable. This does not apply, however, as against a former possessor from whom the thing has been stolen, or who has lost it, or has otherwise been deprived of it, unless it is money or an instrument payable to bearer.

1 From translation by Chung Hui Wang (1907).

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Instruments to order indorsed in blank are equivalent to instruments to bearer." Civil Code, § 234.

The German Commercial Code, § 366 provides: "If a mercantile trader in the usual course of his trade sells or pledges movable property which does not belong to him, the rules of the Civil Code operating to the benefit of persons deriving their title from a person without any title to confer, are applicable even if the good faith of the persons acquiring such property merely consisted in a belief that the vendor or pledgor was duly authorised to dispose of such property on behalf of the true owner." (From A. F. Schuster's translation of 1911.)

APPENDIX II.

THE FACTORS ACT, 1889.

(52 & 53 VICT. c. 45.)

An Act to amend and consolidate the Factors Act.

[26th August, 1889.]

BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: : -

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(1) The expression "mercantile agent" shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods:

(2) A person shall be deemed to be in possession of goods or of the documents of title to goods, where the goods or documents are in his actual custody or are held by any other person subject to his control or for him or on his behalf:

(3) The expression "goods" shall include wares and merchandise:

(4) The expression "document of title" shall include any bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented:

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