SECTION 2. REMEDIES OF THE BUYER.

§ 112. Action for converting or detaining goods. "Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind wrongfully converted or withheld" (11).

The property in the goods being in the buyer, he may bring any possessory action against one who wrongfully deprives him of possession, whether it be the seller or anyone else; and he has his action against the seller for breach of contract to deliver the goods.

§ 113. Action for failing to deliver goods. "1. Where the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery. 2. The measure of damages is the loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract. 3. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver” (12).

Where the property in the goods has not passed to

(11) Sales Act, sec. 66. (12) Sales Act, sec. 67.

the buyer, except in the few cases where specific performance is granted, an action against the seller for damages for breach of contract is his only remedy. The rules regarding the measure of damages in such actions are fully treated in the article on Damages in Volume XI of this work.

§ 114. Specific performance. "Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price and otherwise, as the court may deem just" (13).

A court of equity will never grant specific performance of a contract relating to personal property, if there is an adequate remedy at law by an action for damages. In exceptional cases, where money damages cannot be compensatory or where the damages cannot be measured in money, the equity court will decree that the person withholding the goods wrongfully shall deliver them to the person entitled to them, under the contract; e. g., works of art, property of value to the plaintiff for personal reasons, valuable papers, or goods that cannot be obtained elsewhere (14). For the doctrines of specific

(13) Sales Act, sec. 68.

(14) Lowther v. Lowther, 13 Vesey, 95; Wilkinson v. Stitt, 175 Mass., 581; Pattison v. Skillman, 34 N. J. Eq., 344; Adams v. Messinger, 147 Mass., 185.

performance of contracts, see Equity Jurisdiction, Chapter II, in Volume VII of this work.

§ 115. Remedies for breach of warranty: Sales Act. The remedies provided in the following section of the Sales Act are well established by the courts generally, in this country: "1. Where there is a breach of warranty by the seller, the buyer may, at his election: (a) Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price. (b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty. (c) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty. (d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. 2. When the buyer has claimed and has been granted a remedy in any one of these ways, no other remedy shall thereafter be granted. 3. Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time when the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty,

such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale. 4. Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price. 5. Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seller by section fifty-three ($95, above). 6. The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. 7. In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty" (15).

§ 116. Same: Option to reject or rely on warranty. When goods of a certain description are sold, it is a

(15) Sales Act, sec. 69.

condition of the contract that the goods supplied shall correspond with the description. If the seller supplies goods of a different description or of an inferior quality, the buyer may reject the goods offered altogether; but he is not compelled to do so. If, upon examining the goods, he finds that they do not comply with the contract, he may, nevertheless, accept them and bring suit upon a breach of warranty, or, if an action is brought against him by the vendor for the price, he may prove the breach of warranty, either in diminution of damages or in answer to the action, if the goods are of no value (16). "There has been some controversy in the courts as to the right of the purchaser to accept the goods and rely upon the warranty, some of the authorities holding that where the sale is executory, and the goods, upon arrival at the place of delivery, are found upon examination to be unsound, the purchaser must immediately return them to the vendor or give him notice to take them back, and thereby rescind the contract, or he will be presumed to have acquiesced in the quality of the goods. But the great weight of authority, as well as reason, is now, we think, well settled that, in cases of this kind and character, if the goods upon arrival at the place of delivery are found to be unmerchantable in whole or in part, the vendee has the option either to reject them, or receive them and rely upon the warranty, and that, if there has been no waiver of the right, he may bring an action against the vendor to recover the damages for a breach of the warranty, or set up a counter-claim for such dam

(16) Poulton v. Lattimore, 9 B. & C., 259.