tracted and had a right to expect, arrived in Providence, where there was no market for such fruit. The defendant forthwith notified the plaintiff by telegraph of its refusal to accept them and asked for instructions concerning the disposal of the peaches in Boston, where there was a market for that grade and quality of fruit. The plaintiffs refused to instruct the defendant in the matter, and claimed performance of their part of the contract. The defendant confronted this condition:

A car load of perishable goods, abandoned by the owner, had been left in its charge by the railroad company, which looked to the defendant for payment of the freight. In order to save the goods and protect the owners to any extent, immediate action was imperatively necessary. Ample notice had been given to the owners without avail. Evidently they had doubts as to the sincerity of the defendant's refusal, and were too far away to investigate for themselves. Moreover, they made no attempt to employ any agent to look after their interests in Providence.

The defendant could have rested upon its rights and remained inactive, with the result that, unless the plaintiffs changed their views regarding the matter and took some steps looking toward the disposition of the fruit, or the railroad company sold the same to pay freight charges, or something unlooked for intervened to prevent it, the peaches would have perished without benefit to any one. In the absence of the plaintiffs, unrepresented, the defendant having knowledge of the existing conditions, and having the goods cast upon it in this emergency, not only had the right to protect itself from the freight charges, but also to prevent the owners from needlessly sacrificing their goods without benefit, and at a total loss to themselves, with additional freight charges, through ignorance and obstinacy. "It not infrequently happens that the seller, when notified that the goods are not in conformity with the contract and when requested to remove them, fails to do so, claiming that the contract has been properly fulfilled. Under these circumstances it may be clearly the best thing to do, from a business standpoint, for the buyer, in whose possession the goods are, to sell them at once and leave the question whether the goods fulfilled the terms of the contract or not to subsequent determination. Where goods are perishable, or expensive to keep, or of fluctuating value, any other course is attended with loss to one party or the other. Accordingly it has been held, and it seems reasonable, that the buyer, though refusing to take title because the goods are not what he bargained for, may, after notifying the seller of his rejection and requesting him in vain to remove the goods, resell them on account of the seller." Williston on Sales (1909) § 498. And see Rubin v. Sturtevant, 80 Fed. 930, 26 C. C. A. 259; Hitchcock v. Griffin & Skelley Co., 99 Mich. 447, 58 N. W. 373, 41 Am. St. Rep. 624; Barnett & Co. v. Terry & Smith, 42 Ga. 283.

An application of the Golden Rule is indicated in cases like the present, and for such application the defendant ought not to be penalized through a technicality. As the absent plaintiffs had no agent to take care of their interests, and as it was necessary that their interests should be cared for to save them from loss, the defendant had a right to act as agent for them ex necessitate rei. In such a case the utmost diligence and good faith will be exacted from the person who thus elects to bear the burden of agency. There is nothing in the case at bar to indicate that the defendant has in any manner fallen short of these requirements. The defendant, therefore, was justified in forwarding the fruit to be sold for the benefit of the plaintiffs, and by so doing did not accept the goods.

As it appears by the stipulation hereinbefore set forth that the net. proceeds of the sale by Curtis & Co., after deducting the freight and charges therein alluded to, were tendered to the plaintiffs before they brought this action, and also that the defendant has never received any benefit from said proceeds, it follows that the plaintiffs were not entitled to a verdict for any sum whatever in the case at bar.

The plaintiffs' exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict.76

76 See note, 18 Columbia Law Rev. 178.

CHAPTER V

RIGHTS OF UNPAID SELLER AGAINST THE GOODS

SECTION 1.-LIEN

BLOXAM & WARRINGTON v. SANDERS et al.

(Court of King's Bench, 1825. 4 Barn. & C. 941.)

Trover to recover the value of a quantity of hops from the defendants. At the trial before Abbott, C. J., at the London sittings, after last Trinity term, the jury found a verdict for the plaintiffs, damages £3000., subject to the opinion of this court upon the following case:

The plaintiffs were assignees of J. R. Saxby, a bankrupt under a commission of bankrupt duly issued against him on the 5th of January, 1824. The act of bankruptcy was committed on the 1st of November, 1823, the bankrupt having on that day surrendered himself to prison, where he lay more than two months. The defendants were hop factors and merchants in the borough of Southwark. Previous to his bankruptcy the bankrupt had been a dealer in hops, and on the 7th, 16th, and 23d of August purchased from the defendants the hops (among others) for which this action was brought. Bought notes were delivered in the following form: "Mr. John Robert Saxby, of Sanders, Parkes & Co. T. M. Simmons, eight pockets at 155s. 8th August, 1823." Part of the hops were weighed, and an account of the weights was delivered to Saxby by the defendants. The samples were given to the bankrupt, and bills of parcels were also delivered to him in which he was made debtor for six different parcels of hops, the amount of which was £739.

The usual time of payment in the trade was the second Saturday subsequent to a purchase. Part of the hops belonged to the defendants, and part they sold as factors, but they sold all in their own names, it being the custom in the hop trade to do so. It was proved that the bankrupt had said more than once that the hops were to remain in the defendants' hands till paid for and that he said so when he was about buying one of the parcels of hops for which the action was brought. The bankrupt did not pay for the hops, and on the 6th of September, 1823, the defendants wrote to the bankrupt, and desired him to "take notice, that unless he paid for the hops they had sold him, on or before Tuesday then next, the defendants would proceed to resell them, holding him accountable for any loss which might arise in consequence thereof."

Before the bankruptcy the defendants did not sell any parcel of hops without the bankrupt's express assent. After the notice already stated the defendants sold some parcels of the hops, but in one instance the bankrupt refused to allow the defendants to sell a parcel of hops to a person named by them at the price offered, and that parcel was accordingly sold by the defendants, before Saxby's bankruptcy, to another person by Saxby's authority. On another occasion in the month of September the bankrupt had employed a broker to sell another parcel of the hops, but the defendants refused to deliver them without being paid for them. After the act of bankruptcy the defendants sold hops of the bankrupts to the amount of £380. 19s. 5d. The defendants delivered account sales of the hops so sold by them after the bankruptcy. The hops were stated to be sold for Saxby, and he was charged warehouse rent from the 30th of August, and also commission on the sales.

Besides the hops purchased from the defendants, the bankrupt placed in their warehouse nineteen pockets of hops for sale by them (as factors,) of which fifteen pockets were sold on and after the 13th of January, 1824, of the value of £77. 19s. 5d., and, of which four remained in their warehouse at the time of the trial, which four were of the value of £14., and there were also unsold of the hops purchased from defendants seven bags, fifty-six pockets, of the value of £251. 13s. 6d. There was a demand by plaintiffs of these hops, and a tender of warehouse rent and charges, and a refusal on the part of the defendants to deliver them, before action brought. The jury found that the defendants did not rescind the sales made by them to the bankrupt.

BAYLEY, J., now delivered the judgment of the court. This was an action of trover for certain quantities of hops sold by the defendants to Saxby, before his bankruptcy, and for certain other hops which Saxby, had placed in defendants' warehouses, that defendants in their character of factors might sell them for his use, and the question as to this latter parcel stands upon perfectly distinct grounds from the question as to the others. This parcel consisted of nineteen pockets; defendants sold none of them until after Saxby's bankruptcy, and then they sold fifteen pockets, not for the use of the assignees, but to apply the proceeds, not for any debt due to them in their character of factors, but to discharge a claim they considered themselves as having upon Saxby, in regard to the other hops; and the other four pockets they refused to deliver to the assignees. It was candidly admitted upon the argument, and was clear beyond all doubt, that the defendants were not warranted in applying the proceeds of the fifteen pockets, to the purpose to which they attempted to apply them, and that they had no legal ground for withholding the four pockets; and therefore, to the extent of these nineteen pockets, the value of which is £91. 19s. 5d., we think it clear, that the plaintiffs are entitled to recover.

The other quantities were hops Saxby had bargained to buy of the defendants on different days in August, 1823, and for which defendants had delivered, bought notes to Saxby. The bought notes were in this form: "Mr. J. R. Saxby, of Sanders, Parkes & Co., T. M. Simmons, eight pockets at 155s., 8th of August, 1823." Part of the hops were weighed, and an account delivered to Saxby, of the weights, and samples were given to Saxby, and invoices delivered. The bought notes were silent as to the time for delivering the hops, and also as to the time for paying for them, but the usual time for paying for hops, was proved to be the second Saturday, after the purchase. It was also proved that Saxby, had said that the hops were to remain with the defendants, till they were paid for; but as the admissibility of such evidence was questioned, and in our view of the case it is unnecessary to decide that point, I only mention it to dismiss it. (The learned Judge then stated the other facts set out in the special case, and then proceeded as follows:)

Under these circumstances the question is, whether in respect of these hops, the plaintiffs are entitled to recover. It was urged, on the part of the plaintiffs, that the sale of these hops, vested the property in them in Saxby; that the hops were to be considered as sold upon credit, and that defendants had no lien, therefore, upon any of them for the price; that if they ever had any lien, it was destroyed as to those they sold by the act of sale, and that the plaintiffs were entitled to recover the full value of what were sold, without making any deduction for the price which was unpaid. It is, therefore, material to consider whether the property vested in Saxby, to any and to what extent; and what were the respective rights of Saxby, and of the defendants. Where goods are sold, and nothing is said as to the time of the delivery, or the time of payment, and every thing the seller has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded upon payment of the price; but the buyer has no right to have possession of the goods till he pays the price. The buyer's [seller's] right in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion, and payment or a tender of the price is a condition precedent on the buyer's part, and until he makes such payment or tender he has no right to the possession. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession, Tooke v. Hollingsworth, 5 T. R. 215.

Whether default in payment when the credit expires, will destroy his right of possession, if he has not before that time obtained actual