right over the remainder, unless by agreement a delivery of part is intended as a delivery of the whole, and the carrier holds the balance of the goods in some other capacity, as the purchaser's agent or bailee (21).

§ 103. Same: Effect of transfer of negotiable document of title. "Subject to the provisions of this act, the unpaid seller's right of lien or stoppage in transit is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. If, however, a negotiable document of title has been issued for goods, no seller's lien or right of stoppage in transit shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier or other bailee who issued the document, of the seller's claim to a lien or right of stoppage in transit" (22).

In Newhall v. Central Pacific R. R. Co. (23) goods were sold by a New York firm to a San Francisco firm and shipped by rail to the vendees as consignee, under bills of lading in the usual form, which were received by the consignees before the goods arrived. While the goods were in transit, the consignees became insolvent, and thereupon the vendors notified the railroad company that they stopped the goods in transitu. After the notice of stoppage in transitu was served upon the railroad

(21) Dickson v. Yates, 5 B. & Ad., 313; Kemp v. Falk, 7 App. Cas., 573.

(22) Sales Act, sec. 62.

(23) 51 Cal., 345.

company, the consignees indorsed the bills of lading to purchasers for value who had no notice that the consignees were insolvent or that any notice of stoppage in transitu had been served upon the railroad company. It was held that these subpurchasers were entitled to the goods on delivering up the bills of lading to the railroad company and payment of charges, and that the railroad company was liable for the value of the goods upon its refusal to deliver the same. This provision of the Sales Act is in accordance with that decision, that a purchaser for value without notice is to be protected, even though he buys subsequent to the insolvency of the consignee and subsequent to the notice of stoppage in transitu to the carrier.

The provision of the Sales Act restricting the operation of this principle to a transfer of a negotiable document of title is contrary to the English law, and perhaps that of some American states which recognize no distinction between negotiable and non-negotiable bills of lading.

§ 104. Same: Ways of exercising the right to stop. "1. The unpaid seller may exercise his right of stoppage in transit either by obtaining actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. 2. When notice of stoppage in transit is

given by the seller to the carrier or other bailee in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such redelivery must be borne by the seller. If, however, a negotiable document of title representing the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver, or be justified in delivering, the goods to the seller unless such document is first surrendered for cancellation" (24).

This section of the Sales Act is merely a statement of the established rule, except the last sentence. The notice need not be in any particular form. If the notice is given to the agent or servant of the carrier, who has the actual custody of the goods at the time, such notice is sufficient. If the notice be given to the principal, he must use reasonable diligence to send the notice on to his agent or servant, who has actual custody of the goods, to prevent their delivery to the buyer. If the notice is given to the principal, to be effectual, it must be at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee (25).

§ 105. Resale by the seller: Sales Act. "1. Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable

(24) Sales Act, sec. 59.

(25)

Whitehead v. Anderson, 9 M. & W., 518, 533.

time, an unpaid seller having a right of lien or having stopped the goods in transit may resell the goods. He shall not thereafter be liable to the original buyer upon the contracts to sell or upon the sale, or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. 2. Where a resale is made, as authorized by this section, the buyer acquires a good title as against the original buyer. 3. It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or of the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made. 4. It is not essential to the validity of a resale that notice of the time and place thereof should be given by the seller to the original buyer. 5. The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private sale" (26).

§ 106. Same: Illustrations and comment. All goods the value of which is likely to depreciate within a short time, are perishable. "If articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another. It is a practice therefore founded on good

(26) Sales Act, sec. 60.

sense to make a resale of a disputed article, and to hold the original contractor responsible for the difference" (27). A disposal of the goods by the vendor, to prevent further loss on the buyer's refusal to receive them is not a rescission of the contract. "The vendor of personal property, in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself. 1. He may store or retain the property for the vendee, and sue him for the entire purchase price. 2. He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such sale. 3. He may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price" (28). The resale need not be by auction; any fair sale made in good faith according to established business methods, with no attempt to take advantage of the vendee, is all that is required (29). It is not essential that notice of the sale be given to the vendee, though failure to give notice may be evidence of bad faith on the part of the vendor. The vendor is entitled to deduct the expenses of the resale, but not to put in charges for his own services (30). If any profit, instead of a loss, is realized upon the resale, the seller is entitled to keep it as his own (31).

(27)

Maclean v. Dunn, 4 Bingham, 722.

(28) Earl, C., in Dustan v. McAndrew, 44 N. Y., 72, 78. (29) Ackerman v. Rubens, 167 N. Y., 405.

(30) Penn v. Smith, 93 Ala., 476.