during the period since 1819 (Goodhart v. Lowe 1) that the courts have more clearly shown a disposition to hold that stoppage in transitu does not rescind the contract ... but only gives or restores to the vendors a lien for the price." In Kemp v. Falk2 (salt shipped: B/L to bank), Lord Blackburn said this was " pretty well settled now."

(2.) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer.

:

Nothing is said here about the stoppage being justifiable before this Act the second buyer's title depended upon the question whether the first buyer was in default at the time of the re-sale, for if not he had such a right to the possession that he could maintain trover. Now, the first buyer may have his action against the seller for damages, if the stoppage was unjustified, but cannot bring trover for the goods themselves.

Compare Milgate v. Kebble3 (crop of apples) where the plaintiff, the buyer, could not maintain trover for goods sold to him on the condition that they were to be paid for before being taken away, which never were taken away; therefore, on a resale, the title of the sub-buyer was good. The plaintiff could not prove actual possession or the right of immediate possession. Bloxam v. Saunders (hops resold by vendor) was followed.

In Lord v. Price 5 (salvage lot of cotton) this principle was upheld by Bramwell, B. If the goods were tortiously removed from the vendor's possession, he could maintain trover, and “it cannot be that a man (i.e. another man)

12 Jac. & W. 349. [1819.]

2 7 Ap. Ca. 573, 581; 52 L. J. Ch. 167; 47 L. T. 454; 31 W. R. 125; 5 Asp. M. C. 1. [1882.]

3 3 M. & G. 100; 3 Scott, N. R. 358. [1841.]

44 B. & C. 941; 7 D. & R. 396. [1825.]

5 L. R. 9 Ex. 54; 43 L. J. Ex. 49; 30 L. T. 271; 22 W. R. 318.

[1874.]

can be entitled at the same time to maintain an action of trover for the same goods."

(3.) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.

As stoppage of goods in transitu does not rescind the contract (sub-s. 1), the seller has no absolute right of re-sale at common law.

In Maclean v. Dunn 1 (wool re-sold at a loss by vendor), Best, C.J. said, "It is admitted that perishable articles may be re-sold," and, of all goods, the prices "may alter in a few days, or a few hours," so it is the practice to re-sell a disputed article, which affords some evidence of the law and no cases are cited to oppose it. He also said the rule was "most convenient," and in accordance with "the usage in every branch of trade."

recover damages." If he sues for damages in consequence of the vendee's refusing to complete his contract, it is not necessary that he should retain dominion over the goods." ibid.

the buyer. Where the buyer is bankrupt and his trustee does not tender the price of the goods to the seller who is in possession of them within a reasonable time, the latter may treat the contract as rescinded without tendering the goods to the trustee, and prove in the bankruptcy for damages. Semble, a sub-purchaser from the debtor might also elect to fulfil the contract by tendering the price in cash within a reasonable time. Per Jessel, M.R., Ex parte Stapleton 2 (mixed maize).

14 Bing. 722, 728; 1 M. & P. 761. [1828.]

2 10 Ch. D. 586; 40 L. T. 14; 27 W. R. 327. [1879.]

(4.) 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.

From Lamond v. Devalle1 (shares sold by auction), it seems that such a sale is a conditional one, and, the condition never being fulfilled, it does not become absolute; and the defaulter, in case of re-sale, is liable for the difference and expenses. Per Lord Denman, C.J. It was a case of sale by auction which turned on the pleadings as the sale was not absolute the deficiency could not be recovered in an action for goods bargained and sold. It was one of the conditions of the sale that if the money was not paid on the day following, there should bc a re-sale, the defaulting bidder being held answerable for any loss sustained by the seller.

See Maclean v. Dunn, sup., sub-s. (3), (wool re-sold at a loss by vendor).

19 Q. B. 1030; 16 L. J. Q. B. 136. [1847.]

2 4 Bing, 722; 1 M. & P. 761. [1828.]

125

PART V.

ACTIONS FOR BREACH OF THE CONTRACT.

Remedies of the Seller.

price.

49. (1.) Where, under a contract of sale, the Action for property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

Example 1.-A. sold to B. a consignment of butter, to be shipped at a certain date, and to be paid for by bill at two months from date of landing. B. agreed to a later shipment, and accepted the bill of lading and invoice. The butter was lost by shipwreck. A. could recover the price in an action for goods bargained and sold, because the property passed to the defendants by the contract. Nothing remained to be done by the seller (Alexander v. Gardneri). See section 18, r. 2.

Per Tindal, C.J., in the case cited: "The object of the stipulation, that the goods were to be paid for by a bill at two months after landing, was merely to fix the time of payment, and not to make the landing a condition precedent: Cp. Fragano v. Long (hardware, Birmingham to Naples), supra, section 21.

Example 2.—A buyer agreed to pay for goods sold in

1 1 Bing. N. C. 671, 677; 1 Scott, 281, 630; 3 D. P. C. 146 ; 1 Hodges, 147. [1835.]

2 4 B. & C. 219; 6 D. & R. 283. [1825.]

three months by a two months' bill, but neglected to give the bill. The seller's remedy was not assumpsit for goods sold and delivered at the end' of the three months, but by a special action on the case for damages for the breach of contract in not giving the bill (Mussen v. Price 1).

(2.) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods. has not passed, and the goods have not been appropriated to the contract.

payable on a day certain irrespective of delivery.— This special term takes such a case out of the rule laid down by Parke, B., in Laird v. Pim2 (possession of land), in the Court of Exchequer: "A party cannot recover the full value of a chattel unless under circumstances which import that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with and cannot be sold again." See Dunlop v. Grote, where by a special term of a contract of sale of iron, payment was due on a date agreed upon for delivery, even if delivery should not be required then by the buyers. The latter having refused to accept or pay for the goods, the sellers could maintain an action for the whole price, averring readiness to deliver, without showing an appropriation of any specific iron to the contract.

Compare Castle v. Playford (ice-ship lost at sea),

14 East, 147. [1803.]

27 M. & W. 474, 478; 8 D. P. C. 860. [1841.]

3 2 C. & K. 153. [1845.]

4 L. R. 7 Ex. 98; 41 L. J. Ex. 44; 26 L. T. 315; 20 W. R. 440. [1872.]