S. 48 (4). Action for price. S. 49 (1). has his remedy in trover for the full value of the goods, subject to deduction for the unpaid price, and can maintain an action for damages sustained by the wrongful sale, and recover to the extent of that injury (x). PART V. ACTIONS FOR BREACH OF THE CONTRACT. Remedies of the Seller. 49.-(1.) Where, under a contract of 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, the seller may maintain an action against him for the price of the goods. The remedies of the unpaid seller against the goods, comprising his rights of lien, stoppage in transitu, and re-sale, form the subject of Part IV. of this Act. Part V. proceeds to deal with the remedies of the unpaid seller against the defaulting buyer in a personal action either for the price of the goods or for damages for the non-acceptance of them, and also with the corresponding remedies of the buyer against a defaulting seller. Ss. 51—53, post. "By the law of England, differing in this respect from the civil law, the buyer's default in paying the price will not justify an action for the rescission of the contract, unless that right be expressly reserved. The principle at common law is, that the goods have become the property of the buyer, and that the seller has agreed to take for them the buyer's promise to pay the price. If, then, the buyer fails to pay, the seller's remedy is limited to an action for the breach of that promise, the damages for the breach being the amount of the price promised, to which may be added interest" (y). (x) Per Cur. in Page v. Cowasjee (1866), 1 P. C. at p. 146; Gillard v. Brittan (1841), 8 M. & W. 575 (re-sale before delivery); Stephen v. Wilkinson (1831), 2 B. & Ad. 320 (re-sale after taking goods out of buyer's possession); Chinery v. Viall (1860), 5 H. & N. 288. (y) Benj. p. 763; Martindale v. Smith (1841), 1 Q. B. 389, is the leading case on the subject. As to the seller's right to recover interest, see the notes to s. 54, post, p. 290. S. 49 (1). With regard to procedure, it may be stated generally that before the Judicature Acts the seller under a contract of sale, Procedure. when the property in the goods had passed, could maintain an action for the price under the common indebitatus counts either (1) For goods sold and delivered, this count being applicable when upon a sale of goods the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought (z); or (2) For goods bargained and sold, this count being applicable when, upon a sale of goods, the property had passed to the buyer, and the contract had been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment (a). These counts were abolished by the Judicature Acts, but it is still necessary for the seller to aver such facts as would have formerly entitled him to maintain an action on one or other of the counts. This sub-section embraces both causes of action under the term "contract of sale," which, by s. 62, (1) includes both a bargain and sale and a sale and delivery. In the former case, the seller can avail himself of his personal remedy concurrently with his other remedies (as unpaid seller) against the goods. In the latter case his sole remedy is his personal action (as an ordinary creditor) for the price. Where... the property. . . has passed.-The contract of sale being (under s. 1 (1)) a contract for the exchange of the property in goods in return for the price, the seller cannot ordinarily sue for the price unless the property has passed. The next sub-section shows when he can do so. The rules for the passing of the property are stated supra, in ss. 16 et seq. The buyer wrongfully neglects or refuses.-Generally speaking, the buyer is liable to pay for the goods on delivery, delivery and payment being ordinarily concurrent conditions under s. 28. But the sale may be upon credit, in which case the seller cannot Giving credit maintain an action for the price until after the expiration of the or taking period of credit. A bill or note taken for the price has the postpones same effect as credit in postponing the right of action (b), and seller's right so also has an agreement to pay by bill or note which is not (z) Bullen & Leake on Pleading, p. 38. (a) Ibid. p. 39. (b) Helps v. Winterbottom (1831), 2 B. & Ad. 431; unless it is the inten- bill or note of action. 8. 49 (1). B. 49 (2). given, and the seller cannot maintain an action for the price until the time when the bill or note would have matured (c). As the bill or note is prima facie evidence of payment, the seller must account for the security before he can maintain an action for the price (d). Under this sub-section the seller may maintain his action for the price, although the goods have been destroyed while in his possession, the goods being at the buyer's risk from the time when the property in them passed to him (e). (See s. 20.) (2.) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, 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. Although the general rule is, as stated in sub-s. 1, supra, that the property in the goods must have passed to the buyer in order to entitle the seller to recover the price, it is quite competent to the parties to agree that payment shall be made irrespective of delivery, and the buyer's refusal to pay the price will then be wrongful, although the goods have not been delivered, and the property in them remain vested in the seller (ƒ). ILLUSTRATION. A. agrees to sell B. 1,000 tons of iron, to be delivered by a particular date, and B. agrees to pay for it on that date, whether he is ready to accept delivery or not. B. refuses to accept and pay for the iron. A. may recover from B. the whole price of the iron, although the property in (c) Mussen v. Price (1803), 4 East, 147; Dutton v. Solomonson (1803), 3 B. & P. 582; unless credit was conditional on the security being in fact given; Nickson v. Jepson (1817), 2 Stark. 227, explained in Paul v. Dod (1846), 2 C. B. 800. (d) Benj. p. 735; Price v. Price (1847), 16 M. & W. 232. (e) Benj. pp. 277 et seq., 716; Castle v. Playford (1870), L. R. 5 Ex. 165; L. R. 7 Ex. 98; Alexander v. Gardner (1835), 1 Bing. N. C. 671; Fragano v. Long (1825), 4 B. & C. 219. (f) Dunlop v. Grote (1845), 2 C. & K. 153; cf. Castle v. Playford, supra. As to the right of the parties to introduce into the contract any stipulations which they deem desirable, see per Blackburn, J., in Calcutta, &c. Co. v. De Mattos (1863), 32 L. J. Q. B. at p. 328. the iron has not passed to B., and no specific iron has been appropriated by A. to the contract. Dunlop v. Grote (1845), 2 C. & K. 153. (3.) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. By the law of Scotland, in the absence of an express stipulation as to the date when interest shall commence to run, interest runs from the stipulated date of payment (g). The English law differs from the law of Scotland on this point, and the seller cannot recover interest on the price due, unless, e. g., the buyer has agreed to pay by a bill or note. (See s. 54, post, p. 290, and notes.) S. 49 (2). S. 49 (3). non-accept ance. 50.-(1.) Where the buyer wrongfully neglects Damages for or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. (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 con tract. (3.) Where there is an available market for the goods in question the measure of damages is primâ facie to be ascertained by 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. The buyer wrongfully neglects or refuses to accept and pay for the goods. As to the duty of the buyer to accept and pay for the goods, see Part III. of this Act, ante, pp. 173 et seq. The seller may maintain an action.-" When the seller has (g) 1 Bell's Comm. at p. 694. S. 50 (1). G. T S. 50 (1). S. 50 (2). S. 50 (3). not transferred to the buyer the property in the goods which are the subject of the contract, as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery; the breach by the buyer of his promise to accept and pay can only affect the seller by way of damages. The goods are still his. He may re-sell or not at his pleasure. But his only action against the buyer is for damages for non-acceptance; he can in general only recover the damage that he has sustained (h), not the full price of the goods" (i), except in the particular case mentioned in s. 49 (2). The buyer may incur further liability under s. 37 for delay in taking delivery of the goods. The measure of damages.-The first part of the general rule, laid down in Hadley v. Baxendale (k), and applicable to every class of contract, and which appears to be contained in the words "directly and naturally" in sub-s. 2, requires that the damages arise "naturally, i.e., according to the usual course of things, from the breach of contract itself." The rule is stated and considered under s. 51, post, p. 278; it is of less importance in the seller's action for the buyer's breach of contract by nonacceptance, because the question of special damages does not ordinarily arise, and the loss sustained by the seller does not exceed the price of the goods contracted to be sold. Where there is an available market for the goods.-Sub-s. 3 embodies the particular application of the general rule stated in sub-s. 2 to cases where there is a market. There must be some particular place where the seller can re-sell the goods, and then the test is the difference between the contract price and the "market" (1) price of the goods at the time fixed by the contract for acceptance. The test is only a primâ facie one, because it is, of course, subject to the provisions of ss. 54 and 55. The reason for the rule is thus stated by Tindal, C. J. (m) : "Where a contract to deliver goods at a certain place is broken, the proper measure of damages in general is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser, having the money in his hands, may go into the market and (h) Laird v. Pim (1841), 7 M. & W. 478. (i) Benj. p. 754. (k) (1854), 9 Ex. 341. (7) For the definition of a market, see per James, L.J., in Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D. at p. 25. (m) In Barrow v. Arnaud (1846), 8 Q. B. at p. 609. |