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notes. Indeed, it is said that “Actual insolvency of the vendee is not essential. It is sufficient if before the stoppage in transitu, he was either in fact insolvent, or had, by his conduct in business, afforded the ordinary apparent evidences of insolvency."74

But a mere doubt of the buyer's solvency, though based on adverse reports from a credit agency, will not justify a refusal to deliver possession during the term of credit.76

77

Effect on Lien of Suit for Price.-The lien is not lost by a seller's efforts to enforce payment of the price as agreed. Thus he may receive a part payment,76 or secure a judgment,”” or even satisfy in part a judgment for the price,78 without destroying his right to retain possession till paid the whole price. The judgment is not a settlement of the contract obligation, but a mere change in its form. The right to possession is not lost by proving a claim for the purchase price with the buyer's assignee in bankruptcy, 79 nor with the administrator of his estate.80*

-Effect of Receiving Security.--Neither is the lien lost because the seller has received other, additional, security for the debt, unless the facts are such as to show that acceptance of the other security was inconsistent with the idea of a lien.81

73–Tuthill v. Skidmore, 1 N. Y. Co., 19 Weekly Rep. 388, A sold S. 445; Reynolds v. Railroad, 43 goods to B and shipped them to N. H. 580; Crummey V. Rauden. him by carrier, C. O. D. B refused bush, 65 Minn. 426.

to accept and A recovered a judg. 74–Diem v. Koblitz, 49 0. S.

ment for the price which was paid 41.

in part. B then claimed posses

sion from the carrier and sued in 75—Jewett Pub. Co. v. Butler, 159 Mass. 517; Kavanaugh Mfg.

detinue. The carrier was held to Co. v. Rosen, 132 Mich. 44, 92

be A's agent and, as such, entitled N. W. 788.

to possession by virtue of A's llen

which had not been destroyed. 76—Ante, p. 115.

79—Conrad v. Fisher, 37 Mo, Ap. 77-Rhodes v. Mooney, 43 O. S.

352; Rhodes v. Mooney, 43 O. S. 421; Waschow v. Waschow, 155 III.

421. Ap. 167.

80—Waschow V. Waschow, 155 78—Schrivener v. Gt. No. R. R. Ill. Ap. 167. *See Uniform Sales Act, Section 56, (2).

-Effect of Seller's Attaching the Goods.-It seems probable that the seller will lose his lien if he attaches the goods or levies a judgment against them. There is, however, a conflict of opinion upon this. His loss of the lien is placed on the ground that, “A lien is destroyed if the party entitled to it gives up his right to the possession of the goods. If another person had sued out execution, the defendant might have insisted on his lien. But Messer (the lienor) himself called on the sheriff to sell; he set up no lien against the sale; on the contrary, he thought his best title was by virtue of that sale. Now, in order to sell, the sheriff must have had possession; but after he had possession from Messer, and with his assent, Messer's subsequent possession must have been acquired under the sale, and not by virtue of his lien." ?82 This case was reviewed, with others, in Lambert v. Nicklass,88 and a contrary decision reached, on the theory that a lienor might properly hold possession by an agent and that the sheriff was to be looked upon as an agent of the lienor so far as concerned possession.84

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-General Principles.—These cases, holding that where title has passed a suit or judgment for the price does not affect the seller's right to possession, must be kept distinct from the holding that where possession has passed, but title has been retained till payment, a suit for the purchase price has the effect of passing title.86 The bases of the two propositions are entirely different, but one does occasionally find a tendency even in judicial utterance to confuse them.

81-Smith v. Greenop, 60 Mich. 61; Kimball v. Costa, 76 Vt. 289; Angus v. MacLachlan, 23 Ch. Div. 330; In re Taylor (1891], 1 Ch. Div. 590.

84-Lien lost by attachment, Lawrence v. McKenzie, 88 Iowa 432; City National Bank v. Crahan, 135 Iowa 230; Evans v. War. ren, 122 Mass. 303; Wingard v. Banning, 39 Cal. 543, because the attachment required an affidavit that the demand was not secured by any lien.

82-Jacobs V. Latour, 5 Bing. 130.

83—45 W. Va. 527.

Since recovery of a judgment does not divest the seller of his lien it conversely follows that he need not deliver possession to the buyer, nor even tender it, in order to bring his suit for the price, although he must be able and willing to do so. And this is, of course, consequent on the assumption that title may pass without change of possession, and that title, not possession, is the quid pro quo for the buyer's grant of the price.86

The lien is not lost by mere failure to set it up as a reason for not delivering possession. “An examination of the authorities on the subject, from the early case of Boardman v. Sill, 1 Camp. 410, down, satisfies us that they all proceed upon principles essentially of equitable estoppel, and limit the application of the doctrine invoked by counsel to cases where the refusal to deliver the property was put on grounds inconsistent with the existence of a lien, or on grounds entirely independent of it, without mentioning a lien. Thus it has been repeatedly held that a lien is not waived by mere omission to assert it as the ground of refusal, or by a general refusal to surrender the goods, without specifying the grounds of it, except in certain cases, where the lien was unknown to the person making the demand, and that fact was known to the person on whom the demand was made. In such cases, if the ground of the refusal is one that can be removed, the other party ought in fairness to have an opportunity to do so. But no such state of facts exists in this case. While the defendant did not specify his vendor's lien by reason of plaintiff's insolvency, as the ground of his refusal, yet he never placed his refusal on any ground inconsistent with or independent of it. "187

85—See ante, p. 103.

86—"But it would seem they, (the sellers), could not have an action against Wade for the price, even after the term of credit had expired, according to the rule in Noy's Maxims, until they had delivered the mule to Wade, or tendered him; and the case of Potter V. Cowand, Meigs, 26, above referred to, proceeds on this ground. The other cases do not, and we

think as the sale was perfect between the Moffetts and Wade, the Moffetts could sue for the price after the credit expired, without a delivery or offer to deliver, because the law giving them a lien on the mule, it would be unreasonable to require them to relinquish it before they were paid the price agreed.” Wade v. Moffett, 21 Ill. 110.

Enforcement of Lien.-Resale.- A lien in its origin, as the derivation of the term from the root word meaning a “tie” or “bond” indicates, gave no right to sell the goods subject to it. It was a right of possession merely. “The very notion of a lien is, that if the person who is entitled to the lien, for his own benefit parts with the chattel over which he claims to exercise it, he is guilty of a tortious act. He must not dispose of the chattel so as to give some one else a right of possession as against himself. The lien is the right of the creditor to retain the goods until the debt is paid. "88 If a “seller's lien" were in fact a lien only, the only benefit it could be to him would be whatever he might find in the power of retaining possession of goods actually owned by another person—a dubious benefit in some circumstances.

But the right of an unpaid seller who is still in possession, while it is almost invariably called a lien, is in fact much more than a mere right of continued possession. He has a thoroughly recognized right to resell the property in case of an essential breach of the contract by the buyer. This right to resell was recognized as early as 1704 in Langfort v. Admx. of Tiler,89 when the court said, “ After earnest given, the vendor cannot sell the goods to an

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87–Crummey v. Raudenbush, 55 Minn. 426; Everett v. Coffin, 6 Wend. (N. Y.) 603; Fowler v. Parsons, 143 Mass. 401; White V. Gainer, 2 Bing. 23; contra, Hanna v. Phelps, 7 Ind. 21; Hudson V. Swan, 83 N. Y. 552, a claim of title is inconsistent with that of a lien

and one who has claimed title thereby loses his lien; Boardman v. Sill, 1 Camp. 410, claim of title is inconsistent with that of a lien; cf. Lord v. Jones, 24 Me. 439.

88—Mulliner v. Florence, 3 Q. B. Div. 484.

89–1 Salkeld 113.

other, without default in the vendee; and therefore if the vendee does not come and pay and take the goods, the vendor ought to go and request him; and then if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person.”

This statement of the court indicates that the resale, if made, is indication of a dissolution of the contract, and many other courts have spoken of the right of resale as founded on a “rescission” of the contract. The actual decisions, however, do not bear out the idea. For the seller to dissolve, or rescind, the contract, in a proper sense of those terms, would put an end to its existence. He could not be sued, thereafter, but neither, the agreement having been rescinded, could he sue the buyer in assumpsit. Yet the decisions invariably recognize the right of a seller to sue the buyer on the contract despite his having enforced the lien by a resale of the goods. The theory on which resale is based, therefore, cannot really be that of a rescission of the contract and a revesting of title in the seller, who may thereupon resell his own property. It is rather, that the seller resells property of the buyer, which his lien gives him legal authority and power to do. “His right is very nearly that of a pledgee, with power to sell at private sale in case of default."190 In Sands v. Taylor,91 the seller resold wheat, title to which had passed to the buyer, but which the buyer refused to take and pay for. He then sued the buyer for breach of the contract. The court allowed the suit on the theory that the resale was not a dissolution of the contract but was made by the seller as a “trustee, or agent” for the buyer. The possession of the seller was, it must be noted, predicated in this case on abandonment by the buyer rather than on a lien.92

90-Tuthill V. Skidmore, 124 N. Y. 148.

91-5 Johns. ( N. Y.) 395.

92-See discussion of this case in Moore v. Poter, 155 N. Y. 481.

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