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§ 107. Rescission by the seller. "1. An unpaid seller having a right of lien or having stopped the goods in transit, may rescind the transfer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or of the sale. 2. The transfer of title shall not be held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer, but the giving or failure to give notice to the buyer of the intention to rescind shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was asserted" (32).

It has been shown above that the seller, by holding the possession of the goods or reclaiming them after the purchaser refuses to pay, does not thereby rescind the sale. He retains possession to enforce his lien as vendor (33). His election to rescind must be manifested by notice or some overt act, as by a sale of the goods or dealing with them in a manner inconsistent with the former buyer's right of property therein.

(32) Sales Act, sec. 61.

(33) Ames v. Moir, 130 Ill., 582.

CHAPTER VIII.

ACTIONS FOR BREACH OF THE CONTRACT.

SECTION 1. REMEDIES OF THE SELLER.

§ 108. Action for the price: Sales Act. "1. Where, under a contract to sell or a sale, the 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 or the sale, the seller may maintain an action against him for the price of the goods. 2. Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, 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. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it. 3. Although the property in the goods has not passed, if they cannot readily be resold for a reasonable price, and if the provisions of section sixtyfour, clause 4 (§ 110, below), are not applicable, the seller may offer to deliver the goods to the buyer, and, if the buyer refuses to receive them, may notify the buyer

that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller shall treat the goods as the buyer's, and may maintain an action for the price" (1).

§ 109. Same: Illustrations and comment. Where the property in the goods has passed to the buyer and the buyer wrongfully refuses to pay, it is obvious that the seller has an action for the price. If the property has not yet passed to the buyer, the seller's right to recover the price is not so clear. Where the buyer is at fault in not allowing the property to pass, it is the better doctrine that the seller may recover the price and vest title in the buyer even against the latter's will. In Bement v. Smith (2) the seller made a sulky for the buyer at an agreed price. When it was finished, the seller took it to the buyer's residence, but the buyer refused to receive it. The seller placed it with a third person and sued for the price. It was held that he could recover. One of the remedies which a seller has, against the buyer, upon his refusal to take and pay for the property, is to store or retain the property for the buyer, and sue him for the entire purchase price (3). Where the price is payable on a day certain, if all the conditions have been complied with on the part of the seller, the buyer can not by his own act diminish his obligation to pay the whole sum which he has promised (4). In Tufts v.

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(3) Dustan v. M'Andrew, 44 N. Y., 72, 78. Contra, Moody v. Brown, 34 Me., 107, and many states.

(4) White v. Solomon, 164 Mass., 516.

Burnley (5) a soda fountain was sold and the price was payable in instalments at stated times. The property was to pass upon the last payment. The fact that the property was destroyed before the maturity of some of the notes was held not to relieve the buyer from his obligation to pay the notes when due. "The seller had done all he was to do, except to receive the purchase price; the purchaser had received all that he was to receive as the consideration of his promise to pay."

§ 110. Action for damages for non-acceptance of the goods. "1. Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. 2. The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. 3. Where there is an available market for the goods in question, the measure of damage is, in the absence of special circumstances showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. 4. If, while labor or expense of material amount are necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater dam

(5) 66 Miss., 49.

ages than the seller would have suffered if he did nothing toward carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit which the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages" (6).

These are well established rules of law. Whenever a suit is brought, founded upon a breach of contract, if the plaintiff is entitled to recover, he is "so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed” (7). See the article on Damages in Volume XI of this work.

§ 111. Rescission of contract or sale. "Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer" (8).

When one of two parties to a contract repudiates all his obligations imposed thereby, the other party may refuse to go on with further performance (9). He has his action on the breach of contract, and, if he has partly performed, he may recover the value of what he has furnished to the other party (10).

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(10)

Cort v. Ambergate Railway Co., 17 Q. B., 127; Derby v. Johnson, 21 Vt., 17.

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