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3. POSSESSION RETAINED, BUT TITLE PASSED

Recovery of Price.-A seller who has parted with title is himself entitled to the purchase price, and may sue for it, in an action of debt or indebitatus assumpsit, accordingly. This action can not be maintained, however, if the seller has given credit, until the period of credit has expired. Until that time the seller is not entitled to payment of the sum, as a debt, and there is no breach of contract on the part of the buyer in failing to pay it. Even the refusal of the buyer to accept the goods as tendered, or his becoming insolvent, obviously can not advance the date at which the seller was to become entitled to the purchase price and he can not therefore sue for it before that time.48

But if the credit was obtained by fraud it is sometimes held that the seller is allowed to rescind so much of the contract as appertains to the credit, while treating that part which pertains particularly to the transfer of title and the price as still in force. In such case he may sue for the price just as though no credit had been

seller who had brought suit for the purchase price could not thereafter retake possession, Bailey v. Hervey, 135 Mass. 172, and that such a seller could not recover the purchase price after destruction of the property, Tobbut v. Amer. Ins. Co., 185 Mass. 419. Yet the same court has held that a conditional seller could recover the full amount of the purchase price without having passed title, White v. Solomon, 164 Mass. 516. This may well be explained on the ground that the courts of Massachusetts will not presume that in an ordinary conditional sale the possession is the consideration for the price, but that in White v. Solomon the delivery to the car

rier was expressly stated to be the consideration. Compare also, Heller v. Elliott, 44 N. J. L. 467 and Campbell etc. Co. v. Rockaway Co., 56 N. J. L. 676; Holt Mfg. Co. v. Ewing, 109 Cal. 353, and Matteson v. Equitable Mining Co., 143 Cal. 436; Forbes Co. v. Wilson, 144 Ala. 586; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944. 48-Tatum V. Ackerman, 148 Cal. 357, 113 Am. St. 276; Brady v. Isler, 9 Lea (Tenn.) 356; Bradford v. Marbury, 12 Ala. 520; Keller v. Strasburger, 90 N. Y. 379; Girard v. Taggart, 5 Serge & Rawle (Pa.) 19; Dutton v. Solomonson, 3 Bos. & Pul. 582; Mussen v. Price, 4 East. 147.

*See Uniform Sales Act, Section 63, (1).

given.49 Other courts, however, more logically, hold that the matter of credit is an intrinsic part of the contract of sale and that the contract must be rescinded as a whole, or not at all, and that therefore the seller can not sue for the purchase price before the period of credit has expired, even in cases of fraud.50

Breach of Contract.-Of course, if the buyer refuses to pay the price when due, the seller can, if he chooses, sue to recover damages for breach of the contract instead of suing in debt for the price itself.

But where title has already passed and the buyer merely refuses to receive the possession, the damage to the seller from that refusal itself is slight, if anything. This refusal, however, may and presumably does indicate an intent on the when payment becomes due. to an anticipatory breach.

buyer's part not to pay It may amount, therefore, The buyer can not be said to have broken his promise to pay, since the time for payment has not arrived. He may be said, however, to have impliedly announced that he will not pay when the time does come; in other words, to have committed an anticipatory breach of the contract. If this is the fair implication, he may be sued at once for damages resulting from his breach, in most jurisdictions.51*

49-Heillbronn v. Herzog, 165 N. Y. 98; Willson v. Force, 6 Johns. (N. Y.) 110; Joffray v. Wolf, 4 Okla. 303.

50-Jones v. Brown, 167 Pa. 395. 51-Nichols v. Scranton Steel Co., 137 N. Y. 471; Engesett v. McGilvray, 63 Ill. Ap. 461; in Orr v. Leathers, 27 Ind. Ap. 572, it was held that on the buyer's refusal to give promissory notes as agreed, the seller need not wait for the expiration of the credit but

might at once sue for damages for breach of the agreement to give "security," i. e., the notes. It was further held that the damage from this failure to give the notes was "the whole damages equal to the value of the security had it been given, prima facie the amount of the sum secured." (Author's italics). Citing 2 Sutherland on Damages (2d Ed.) sec. 644.

Cook v. Stevenson, 30 Mich. 242; Hanna v. Mills, 21 Wend. (N. Y.)

*See Uniform Sales Act, Section 51.

Seller's Lien.-When the title has passed to the buyer, but the seller has retained possession, he, the seller, has a right, unless he has given credit to the buyer, to keep that possession till payment.

This right to retain possession till payment is called a seller's, or vendor's, lien.52* It has nothing to do with the right of an owner to retain possession of his own goods. It is independent of title. Indeed a seller's lien exists only when title has passed out of the seller. Its existence "always presupposes that title to the goods has passed to the vendee; since it would be an incongruous conception that a vendor might have a lien on his own goods. ''58

The seller's right of continued possession, until payment, is effective even against a purchaser for value from the original buyer.54

90; Manufacturing Co. v. Cereal Co., 124 Iowa 737.

As analogous issues in cases not involving sales, Wolf v. Marsh, 54 Cal. 228; Hosmer v. Wilson, 7 Mich. 294; Chapman v. Kansas City R. R., 146 Mo. 481; Burtis v. Thompson, 42 N. Y. 246; Frost V. Knight, L. R. 7 Ex. 111; Inchbold v. Western etc. Co., 17 C. B. (n. s.) 733; Ford v. Tiley, 6 B. & Co. 325.

Contra, Daniels v. Newton, 114 Mass. 530; King v. Waterman, 55 Neb. 324.

52-Conrad v. Fisher, 37 Mo. Ap. 353, 382; Burke v. Dunn, 117 Mich. 430; Hoskins v. Warren, 115 Mass. 514; Perrine v. Barnard, 142 Ind. 448; Sparger v. Huffman, 15 Ky. L. R. 848; Cragin v. O'Connell, 63 N. Y. 1071.

53-Conrad v. Fisher, 37 Mo. Ap. 352, 8 L. R. A. 147; Perrine v. Barnard, 142 Ind. 448; Arnold v. Delano, 4 Cush. (Mass.) 33,

"The term lien imports, that by the contract of sale, and a formal symbolical or constructive delivery, the property has vested in the vendee; because no man can have a lien on his own goods. The very definition of a lien is, a right to hold goods, the property of another in security for some debt, duty or other obligation. If the holder is the owner the right to retain is a right incident to the right of property *

This is not, however, always kept clearly in mind by some courts, with a resultant confusion of idea. See Post, p. 114.

54-McElwee V. Metropolitan Lumber Co., 69 Fed. 302; Robinson v. Morgan, 65 Vt. 37; Vogelsang's Admr. v. Fisher, 128 Mo. 386; Ware River R. R. Co. v. Vibbard, 114 Mass. 447; R. R. Co. v. Plant, 45 Mo. 517; Perrine v. Barnard, 142 Ind. 448; Dixon v. Yates, 5 B. & Ad. 313.

*See Uniform Sales Act, Section 54, (1).

-Effect of Loss of Possession.-There is no seller's lien, however, unless the title has passed to the buyer without a transfer of possession. That is to say, the right to keep possession of the goods until payment depends upon the fact that the seller has already steadfastly retained possession despite the change of title. By delivering actual possession of the goods to the buyer the seller loses his right to any further possession, whether he has been paid or not.55

But delivery of mere constructive possession to the buyer does not affect the seller's lien. If he has retained the actual possession, his right to continue in possession is not impaired. In Woodland Co. v. Mendenhall,56 for instance, the seller sold copper wire to the defendant and strung the wire on the defendant's poles. The seller Company, however, was operating the defendant's railroad at the time and therefore had physical possession of the defendant's poles and other property. The court accordingly said that while constructive possession of the wire might have passed to the buyer by virtue of attachment to its poles, yet as the poles themselves were in the actual possession of the seller, the actual possession of the wire had also been retained by the seller and therefore its seller's lien still existed. In another case the plaintiff had sold to one Dewey a number of barrels of whiskey then stored in a bonded warehouse. As part of the contract plaintiff was obliged to ship the whiskey to the buyer when and as ordered. Notice of the sale was given to the warehouse man and he

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55-Haskins V. Warren, 115 Mass. 514; Sparger v. Huffman, 15 Ky. L. R. 848; Meyers v. McAllister, 94 Minn. 510; Pickett v. Bullock, 52 N. H. 254, "Possession is not only essential to the creation, but also to the continuance of a lien; and when the party voluntarily parts with the possession of the property upon which

the lien has attached, he is devested of the lien."

Statutes in some states provide for certain rights of repossession by the seller even after he has transferred possession. See Jones, Liens.

56-82 Minn. 483.

57-Mohr v. Boston & Albany R. R. Co., 106 Mass. 67.

thereupon certified that he held the whiskey for the buyer, Dewey, as owner. The court held that even under these circumstances Dewey had acquired only a constructive possession and not an actual one.58*

Whether or not there has been an actual delivery of possession to the buyer, as distinct from a merely constructive one, has been said to be a question of fact for the jury if the facts from which it is to be determined are themselves uncertain.59 The great majority of courts, however, treat it, without comment, as a question to be decided by the court itself.

-Delivery to Carrier.-Since a carrier to whom goods have been given for transportation is treated as the agent of the buyer in so many ways, such as to assent to the passing of title and as to make the buyer liable for goods sold and delivered, it is a logical assumption that by delivery to a carrier, without express restriction, the seller loses his lien. The seller would have parted with possession, not merely constructively, but actually, to an agent of the buyer. The case would rarely arise in practice, however. The fact that goods were

dee, it is only because of the manifest intention of the vendor utterly to abandon all claim and right of possession, taken in connection with the difficulty or impossibility of making an actual and manual transfer, that such a delivery is considered as sufficient to annul the lien of the vendor." Miles v. Gorton, 2 C. & M. 504, goods stored by seller at buyer's cost.

58-The seller's lien is not lost "by any species of constructive delivery, so long as he (the seller) retains the actual custody of the goods, either by himself, or by his own agent or servant", Conrad v. Fisher, 37 Mo. Ap. 352, 8 L. R. A. 147, citing many authorities. McElwee v. Metropolitan Lumber Co., 69 Fed. 302; Arnold v. Delano, 4 Cush. (Mass.) 33; Vogelsang's Admr. v. Fisher, 128 Mo. 386; Thompson v. Baltimore & Ohio R. R., 28 Md. 396, 407, "In all cases of symbolical delivery, which is the only species of constructive delivery sufficient to give a final possession to the ven*See Uniform Sales Act, Section 54, (2).

Delivery of negotiable warehouse receipts so far passes possession to the buyer as to preclude a lien in the seller, Rummel v. Blanchard, 216 N. Y. 348.

59-Conrad v. Fisher, 37 Mo. Ap. 352.

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