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said the rights of the parties depended upon a finding by the jury as to whether the owner of the land had retained a potential interest in half of the crop or had sold his entire potential interest to the tenant and was merely to be repaid with half of the crop. If he had retained an ownership in the future crop, and had conveyed to the tenant ownership in only half of what should be raised, his sale of his potential interest to plaintiff gave plaintiff title to the half of what had been raised. But if the lessor had intended to transfer ownership of all the crop to the lessee and take back half of it as pay, he had not a potential interest but only an expectancy of payment. This expectancy he could not transfer like a potential interest and defendant's rights would be superior to plaintiff's. This illustrates well the difference in rules between sale of what one does not own, but expects to acquire, and the sale of a potentiality out of which some tangible thing is expected to spring. In the former case title does not pass without some demonstration of intent to pass it after the seller has acquired it; in the latter the title to the tangible thing vests in the purchaser immediately on its coming into existence as a result of the sale of the potentiality.146

146—Some cases take a con. trary view and hold that there may be a potential interest which will pass title in futuro in things which are the expected but not the natural product of property already owned. In Wiant V. Hayes, 38 W. Va. 681, one H. owned certain land which was about to be sold for taxes. By the law any excess from the sale over the amount of taxes would belong to H. Before the tax sale H. sold to K. his right to any possible excess. The excess not being in existence K. could have no title at that time. Subsequent to this, plaintiff acquired a judg.

ment lien against all of H's property. The issue was as to respective rights of K. and plaintift in this excess. The court called H's right to the excess a "potential interest" in it and declared K's title therefore superior to that of plaintiff.

In Dargin v. Hewlett, 115 Ala. 510, the owner of a race track was said, as a matter of dictum, to have a "potential interest” in the profits of its operation which could be the subject of sale so as to pass title without further act. As the action was between the parties for accounting in equity, the statement was unre.

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There is some question whether the doctrine of potential interest is broad enough to pass title, without further act, to crops which are not even planted at the time of sale. Some courts have held that even in such case

. title passes as soon as the crop comes into existence.147 The general rule, however, appears to be that there is no potential interest in crops for which the seed has not been sown.148 It has even been said that title would not pass until the crop was threshed and ready for delivery.149

There is a similar conflict as to whether there is a potential interest in the young of animals before the dam has actually been covered by the sire. Some cases recognize that there is such an interest prior to impregnation.160 Other cases hold that no title passes by the agreement, without some subsequent act, unless the offspring was in foetu at the time. 161

lated to any issue. Kerr v. Crane, 212 Mass. 224, 40 L. R. A. (n. 8.) 692. As to whether the assignment of a debt due or to become due creates in the assignee a title or mere personal right, see the controversial articles by Messrs. Cook and Williston in the Harvard Law Review.

Many cases hold that an assignment of rights of action, to become effective in futuro, is valid, but this does not involve question of title and should not be confused.

147-Dickey v. Waldo, 97 Mich. 255, holds that the buyer could bring an action for conversion against the seller; Argues V. Wasson, 57 Cal. 620, 21 Am. Rep. 718; Jones V. Webster, 48 Ala.

109; Miller V. Chapel, 35 Minn. 399, 29 N. W. 52; but, compare Welton V. Hill, 65 Minn. 273; Patch v. Tutin, 15 M. & W. 110.

148-Farmers Natl. Bk. V. Coyner, 44 Ind. Ap. 335; Hutchinson v. Ford, 9 Bush (Ky.) 318, 15 Am. Rep. 711; Apperson v. Moore, 30 Ark. 56, 21 Am. Rep. 170; Hurst V. Bell, 72 Ala. 336, dictum; Grant v. Steiner, 65 Ala. 499; Wel. ton v. Hill, 65 Minn. 273.

149—Welton V. HU, 65 Minn. 273.

150-McCarty V. Blevins, 5 Yerger (Tenn.) 195, 26 Am. Dec. 262; Hull v. Hull, 48 Conn. 250; Fonville v. Casey, 1 Murphey (N. C.) 389, 4 Am. Dec. 559.

151—Bates V. Smith, 83 Mich. 347.

CHAPTER III

SELLER'S REMEDIES AND RIGHTS

1. BOTH TITLE AND POSSESSION RETAINED

Thus far we have discussed the question whether, in the particular case, title has passed to the buyer or not. We now assume, without further discussion, that it has passed or has not passed as the fact may be in the particular case, and consider the seller's remedies upon that assumption.

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Breach of Contract. As was before pointed out, every transfer of title must be preceded or accompanied by an agreement to pass title, which agreement is in effect a contract, either express or tacit. Until there is at least a contract to buy and sell there is of course no "seller” to claim any remedy—there is at most only a would-be seller. But after a contract has been entered into, and before title has been passed, the seller has the same rights and remedies that any promisee under a contract has. The buyer has promised to take the title to certain described property and to pay a certain price in exchange therefor. Failure so to do has the same effect, and no more, as any breach of contract. It would be out of place to discuss the rights in respect to a contract and the remedies for its breach in this work. They involve too general a knowledge of contracts to be briefly discussed and reference must be made to works treating of contract law especially.

In general, it may be said without discussion, that under certain circumstances of failure by the buyer to perform his promise, the seller may treat the contract as rescinded and as though it had never existed.* In any event, if there has been a breach by the buyer the seller may treat his own contract liability as being at an end and need do nothing more under the agreement. He may have received nothing from the buyer, but, conversely, he has parted with no title and may not even have parted with possession.

If the buyer breaks his contract, the seller, regardless of his other remedies, may always sue for damages. It is not the purpose of this book to discuss what constitutes a breach of contract by a party thereto. Neither can the things which the other party must do, or the position he must assume, before he can sue because of the breach, be here gone into. It may be said, however, that, broadly speaking, the seller must himself be willing and able to carry out his side of the bargain, and must have done everything necessary according to the contract to entitle him to performance by the buyer.t

-Damages.—If the buyer's breach occurs before the seller has parted with either title or possession, it is obvious that the seller's loss, his damage, is only the difference between what he could get immediately from some other buyer and what the defaulting buyer agreed to pay. Since he still has the chattel, he is not damaged to the full extent of the agreed price, but only to the extent of the difference in realizable value of the chattel and the agreed price. This is the clearly settled rule.

1-Bigelow v. Legg, 102 N. Y. 173; Mayo v. Lathern, 159 Mich. 652; Unexcelled v. Polites, 130 Pa. 136; Moffat v. Davitt, 200 Mass. 536; Murray v. Doud, 167 Ill. 368; 452; Rickey v. Tenbroeck, 63 Mo. Cohen v. Platt, 69 N. Y. 348; 563; Poel v. Brunswick-Balke Co., Pittsburgh etc. R. R. v. Aeck, 50 159 N. Y. App. Div. 365; Peters v. Ind. 303; Tufts v. Bennett, 163 Cooper, 95 Mich. 191; Mohr HardMass. 398; Manhattan, etc. Ry. ware Co. v. Dubey, 136 Mich. 677, Co. v. Genl. Elec. Co., 226 Fed. difference between contract and *See Uniform Sales Act, Section 65.

See Uniform Sales Act, Section 41, 42, 43, (1), (2), (3), (4), (5), 44, (1), (2), (3), (4), 45, (1), (2), 46, (1), (2), (3).

This value to the seller of the chattel which he still owns should logically be the largest amount which he could get from someone else—that is to say, its market value-as soon after the buyer's refusal as he could reasonably be expected to re-sell it. There is very much loose statement in the decisions, but this rule is the basis on which the courts strive to ascertain the damages fairly.

Of course, if the seller would be put to extra expense in finding another purchaser and selling to him, the value of the chattel to the seller would not be the gross price of the resale, but that price less the cost of making the second sale. The courts therefore allow this expense to be deducted from the possible resale value in order to fix the actual value to the seller of the chattel left in his hands by the defaulting buyer.3

On the other hand, if the seller could get rid of the goods to another without certain expenses which he

cost to seller rejected as measure of damage; Cole v. Zucarello, 104 Tenn. 64; Krebs Hop Co. v. Livesley, 59 Ore. 574, not limited to difference between contract price and price, higher than market value, which defendant later offered; Schramm v. Boston Sugar Co., 146 Mass. 211. This common law rule has been declared by statute in some states.

2-It has even been held that this difference between the contract price and the market value must be stated in the petition, Ridgley v. Mooney, 16 Ind. Ap. 362; Dill v. Mumford, 19 Ind. Ap. 609.

3—Peters v. Cooper, 95 Mich. 191; Am. Hide Co. v. Chalkley, 101 Va. 458; Holliday v. Lesh, 85 Mo. Ap. 285; Tufts v. Grewer, 83 Me. 407; Piowaty v. Sheldon, 167 Mich. 218;, Woods v. Cramer, 34

S. C. 508; Slaughter v. Marlow, 3 Arizona 429; Hill v. McKay, 94 Cal. 5, cost of transportation to nearest market; McCracken V. Webb. 36 Ia. 551, cost of keeping till market could be found; Redhead Bros. v. Investment Co., 126 Ia. 410, Id; Lewis v. Greider, 51 N. Y. 231, insurance; Best Mercantile Co. v. Brewer, 50 Colo. 455, seller's traveling expenses; but cf. Penn. V. Smith, 93 Ala. 476; Texas Lumber Co. v. Rose (Tex.) 103 S. W. 444, but not expenses of attempted collection; Zimmeister v. Rock Island Canning Co., 145 Ky. 25, nor unnecessary expenses; Chapman v. Ingram, 30 Wis. 290, Id; Gehl V. Milwaukee Produce Co., 105 Wis. 573, Id; Thurman v. Wilson, 7 Ill. Ap. 312, Id; Armsby Co. v. Raymond Bros. Co., 90 Neb. 553, necessity depends on facts of each case.

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