seems to be no reason to doubt that the seller, if he has delivered the goods to the buyer, may recover the full price." In most jurisdictions the seller is allowed to recover the price, even though the subject-matter of the sale has been accidentally destroyed.99 Such decisions necessarily involve the seller's right to recover the price irrespective of transfer of the property. The contrary decisions contain, however, no implication that if the goods had not been destroyed the seller could not recover the instalments of the price payable before the time for transferring the property. Of course it is entirely possible to make the price payable irrespective of delivery as well as of transfer of the property,1 but such a contract must be unusual? It is generally provided in contracts of conditional sale that on default of the buyer the seller may reclaim possession of the goods, and even in the absence of such a provision it has been held to be implied.3

§ 736. Conditional seller's election of remedies.

If the seller exercises his right to reclaim the goods, it is generally held an election to rescind the contract, and thereafter an action for the price or any unsatisfied balance of it, is not allowed.4

the price is not to be paid irrespective of delivery, and under the English statute it is hard to see how the seller could recover more than the difference between the contract price and the market price for the goods.

98 Bierce v. Hutchins, 205 U. S. 340, 348, 51 L. Ed. 828, 834; McRae v. Merrifield, 48 Ark. 160, 2 S. W. 780; Morris v. Cohn, 55 Ark. 401, 18 S. W. 384, 385; Vinegar Bend Lumber Co. v. Soule Steam Feed Works, 182 Ala. 146, 62 So. 279; Bond v. Bourk, 54 Colo. 17, 129 Pac. 223; Smith v. Aldrich, 180 Mass. 367, 62 N. E. 381; Whitney v. Abbott, 191 Mass. 59, 77 N. E. 524; Haynes v. Temple, 198 Mass. 372, 84 N. E. 467; R. C. Bartley Co. v. Lee, 87 N. J. L. 19, 93 Atl. 78; McDaniel v. Chiaramonte, 61 Oreg. 403, 122 Pac. 33; Sioux Falls Adjustment

It is obviously possible, however, for the seller to resume possession of the goods without thereby rescinding the contract. He may, it would seem, resume possession without forfeiting or claiming to forfeit the buyer's right to pay any unsatisfied portion of the price and thereby perfect his ownership, but merely to increase his own security.5 But the mere reclaiming of possession seems generally regarded as an election to rescind the sale; and it seems rightly, for it is generally a correct inference from the reclaiming of possession by the seller that the buyer's interest in the property is to be terminated. But that this involves a termination of the buyer's contractual obligation does not follow. The consideration for the promise to pay was the conditional right given the buyer, and "when a man acts in consideration of a conditional promise, if he gets the promise he gets all that he is entitled to by his act, and if, as events turn out, the condition is not satisfied, and the promise calls for no performance, there is no failure of consideraAultman v. Fletcher, 110 Ala. 452, 18 So. 215; Nashville Lumber Co. v. Robinson, 91 Ark. 319, 121 S. W. 350; Rodgers v. Bachman, 109 Cal. 552, 42 Pac. 448; Green v. Sinker, 135 Ind. 434, 35 N. E. 262; Reeves v. Miller (Ind. App.), 91 N. E. 812; Perkins v. Grobben, 116 Mich. 172, 74 N. W. 469, 72 Am. St. Rep. 512; McBryan v. Universal Elevator Co., 130 Mich. 111, 89 N. W. 683; Minneapolis Works v. Hally, 27 Minn. 495, 8 N. W. 597; Aultman v. Olsen, 43 Minn. 409, 45 N. W. 852 (compare Third Bank v. Armstrong, 25 Minn. 530); Fredrickson v. Schmittroth, 77 Neb. 724, 112 N. W. 564; Madison Live Stock Co. v. Osler, 39 Mont. 269, 102 Pac. 325; Earle v. Robinson, 91 Hun, 363; affd., without opinion, 157 N. Y. 683, 51 N. E. 1090; Ratchford v. Cayuga &c. Co., 217 N. Y. 565, 112 N. E. 447, L. R. A. 1916 E. 615; White v. Gray's Sons, 96 N. Y. App. Div. 154, 89 N. Y. S. 154; Edmead v. Anderson, 118 N. Y. App. Div. 16, 103 N. Y. S. 369; Ohl v. Standard Steel Section, Inc., 179 N. Y. App. Div. 637, 167 N. Y. S.

184; Campbell Press Co. v. Hickok, 140 Pa. St. 290, 21 Atl. 362; Seanor v. McLaughlin, 165 Pa. St. 150, 30 Atl. 717; Kelley Springfield Roller Co. v. Schlimme, 220 Pa. St. 413, 69 Atl. 867; Stewart & Holmes Drug Co. v. Ross, 74 Wash. 401, 133 Pac. 577; Tufts v. Brace, 103 Wis. 341, 79 N. W. 414; Sawyer v. Pringle, 18 Ont. App. 218.

5 Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, 36 L. R. A. (N. S.) 594; Hollenberg Music Co. v. Bankston, 107 Ark. 337, 154 S. W. 1139; Muncy v. Brain, 158 Cal. 300, 110 Pac. 945; Pease v. Teller Corporation, 22 Ida. 807, 128 Pac. 981; Westinghouse Elec. Co. v. Auburn, etc., R. Co., 106 Me. 349, 76 Atl. 897 (statutory); Tufts v. D'Arcambal, 85 Mich. 185, 48 N. W. 497, 12 L. R. A. 446, 24 Am. St. Rep. 79. See also Latham v. Sumner, 89 Ill. 233, 31 Am. Rep. 79; Cutting v. Whittemore, 72 N. H. 107, 54 Atl. 1098; White v. Gray's Sons, 96 N. Y. App. Div. 154, 89 N. Y. S. 481; McDaniel v. Chiaramonte, 61 Oreg. 403, 122 Pac. 33.

6

tion." The only reason for qualifying this principle is the equitable principle which forbids a forfeiture. If this equitable principle were applied the seller would be compelled to credit against the balance of the price, the value of the goods when retaken, as shown by a subsequent resale or otherwise, or to return the goods on tender of the balance of the principal. Some courts have further held that as the seller has reclaimed the goods there is failure of consideration, not simply for the buyer's promise to pay the remainder of the price, but also for any portion of the price that may have been already paid, and that, therefore, at least if the contract does not provide for the forfeiture of such payments, they may be recovered with only such deduction as is fair compensation for the use of the goods. And a few courts have also held that in an action brought to reclaim possession the seller must either tender the portion of the price which has been paid subject to proper reduction for temporary use, or that a money judgment will be rendered in which an equitable reduction is made from the value of the goods. But there is force in the statement of the California court "that there is little equity and no policy in allowing a buyer under such circumstances to be at pleasure quit of his contract with no other liability than such as the law would have implied had there been no contract at all." 10 A seller should be allowed all the means that he has contracted for in order to get the price of the goods, and most courts do not compel the seller to account for any payment which he has received if he reclaims the goods because of the buyer's default.11

Gutlon v. Marcus, 165 Mass. 335, 336, 43 N. E. 125. See also Dyrenforth v. Palmer, etc., Tire Co., 145 Ill. App. 62, affd., 240 Ill. 25, 88 N. E. 290, and supra, § 112.

7 See decisions, infra, § 738.

8 Hill v. Townsend, 69 Ala. 286; Pierce v. Staub, 78 Conn. 459, 62 Atl. 760, 3 L. R. A. (N. S.) 785; Latham v. Sumner, 89 Ill. 233, 31 Am. Rep. 79.

'Hays v. Jordan, 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373; National Cash Register Co. v. Cervone, 76 Ohio St. 12, 80 N. E. 1033 (statutory). See

also Hamilton v. Singer Mfg. Co., 54 Ill. 370. If the fair value of the goods for the period during which the buyer has had them exceeds the portion of the price paid, no deduction may be made in an action of trover by the seller. Commercial Publishing Co. v. Campbell Printing Co., 111 G. 388, 36 S. E. 756.

10 Rayfield v. Van Meter, 1 Cal. 416, 52 Pac. 666. See also Mer v. Guest Piano Co. (Iowa), 172 N. . 302.

11 Richards v. Hellen, 153 Ia N. W. 393; Mohler v. Guest F

133 Co.

§ 737. Analogy of mortgage.

In some States stress is laid upon the existence of an express term in the contract that the payments shall be forfeited. 12 But it seems that little importance should be attached to this provision, 13 for even when not expressed it must always be a fair implication. The right given expressly or impliedly to retake possession cannot fairly be considered as meaning a right to rescind the transaction by putting the buyer in statu quo. So long as courts treat the question as one to be determined solely by the provisions of the contract, the conclusion can rarely be avoided that the seller may resume possession and hold all that he has received. No satisfactory solution of the rights of the parties in such a transaction can be found without observing that the essential character of the transaction is the same as that of an absolute sale with a mortgage back.14 A failure to observe and apply this analogy has led to injustice both against the seller and against the buyer. The seller is by

(Iowa), 172 N. W. 302; Fleck v. Warner, 25 Kans. 492; Hawkins v. Hersey, 86 Me. 394, 30 Atl. 14; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592; Angier v. Manufacturing Co., 1 Gray, 621, 61 Am. Dec. 436; Lorain Steel Co. v. Norfolk & Bristol Street Ry. Co., 187 Mass. 500, 73 N. E. 646; Haynes v. Temple, 198 Mass. 372, 84 N. E. 467; Hoe v. Rex Mfg. Co., 205 Mass. 214, 91 N. E. 154; Knudson v. General Motorcycle Co., 230 Mass. 54, sub nom., Raymond v. Motorcycle Co., 119 N. E. 359; Thirlby v. Rainbow, 93 Mich. 164, 53 N. W. 159; Ryan v. Wayson, 108 Mich. 519, 66 N. W. 370; Perkins v. Grobben, 116 Mich. 172, 74 N. W. 469, 39 L. R. A. 815, 72 Am. St. Rep. 512; Van Den Bosch v. Bouwman, 138 Mich. 624; Duke v. Shackleford, 56 Miss. 552 (overruling on this point a dictum in Ketchum v. Brennan, 53 Miss. 596); Haynes v. Hart, 42 Barb. 58; Pfeiffer v. Norman, 22 N. Dak. 168, 133 N. W. 97, 38 L. R. A. (N. S.) 891; Morgan v. Kidder, 55 Vt. 367. As to land, see Davis v. Wilson, 55 Oreg. 403, 106 Pac. 795. In two cases above cited

(Fleck v. Warner and Thirlby v. Rainbow), though it was decided that the seller might regain possession without accounting for payments received, the question was left open whether subsequently the buyer would have a right to redeem the property or to recover payments made. See also Ratchford v. Cayuga &c. Co., 159 N. Y. App. Div. 525, 145 N. Y. S. 83. But a seller who reclaims possession and retains payment was held not entitled to any further damages for the buyer's use of the property or breach of contract. Eilers Music House v. Oriental Co., 69 Wash. 618, 125 Pac. 1023.

12 See Singer Mfg. Co. v. Treadway, 4 Ill. App. 57 (compare Singer Mfg. Co. v. Ellington, 103 Ill. App. 517); Van Den Bosch v. Bouwman, 138 Mich. 624. See also Pierce v. Staub, 78 Conn. 459, 62 Atl. 760, 3 L. R. A. (N.S.) 785.

13 Mohler v. Guest Piano Co. (Iowa), 172 N. W. 302, 306.

14 Swayze, J., in R. C. Bartley Co. v. Lee, 87 N. J. L. 19, 93 Atl. 78.

a majority of courts denied the two remedies for which his contract provides; namely, the personal obligation of the debtor and the security of the goods, and compelled to choose between them, though both may be necessary for his protection. The buyer is also by the majority of courts denied the protection which courts of equity long ago gave to mortgagors. The opportunity and danger of a forfeiture are the same in the case of a conditional sale as in a mortgage; yet though it is abundantly established everywhere that whatever the terms of a mortgage, the mortgagee is only entitled to obtain his debt and interest, and that terms of the bargain by which a forfeiture is contracted for will not be enforced, it seems to be generally supposed that in a conditional sale the terms of the bargain are to be enforced whatever they may be.15

§ 738. Invalidity of reasons for distinguishing conditional sales from mortgages.

This difference is doubtless partly due to the fact that courts of equity have established the fundamental principles of the law of mortgages, whereas the rights of the parties in conditional sales have generally been determined at law. But in view of the general adoption of equitable principles by courts of law to-day, either under statutes or without their aid, there seems no reason why such principles should not be applied now whatever the form of action. Some courts have so determined and have given the parties rights analogous to those of mortgagor and mortgagee. 16 In some other jurisdictions

15 See cases cited in the preceding sections, also Bierce v. Hutchins, 205 U. S. 340, 347, 51 L. Ed. 828, 834, 27 S. Ct. 524.

16 In Re Blanchard, 8 Ch. D. 601, 605 ("This stipulation for forfeiture is simply in the nature of a penalty against which on due cause being shown, relief might be obtained"; Dederick v. Wolfe, 68 Miss. 500, 9 So. 350, 24 Am. St. Rep. 283 (in this case payments had been made but the last payment was over-due. The seller replevied the goods and sold them. The price realized was

not sufficient, added to what had already been received, to pay the buyer the full price of the goods. It was held that he might sue for the balance); McPherson v. Acme Lumber Co., 70 Miss. 649, 12 So. 857 (the seller received notes for the price and subsequently indorsed them. In spite of this indorsement, and in spite of the fact that suit was pending on the notes by the indorsee, it was held that the seller might bring replevin for the goods, but that he would hold the property in trust); Ratchford v. Cayuga Co., 145 N. Y. S. 83 ("Such contracts