nothing towards carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages.

Section 65.-[When Seller may Rescind 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.

Remedies of the Buyer

Section 66.-[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 when wrongfully converted or withheld.

Section 67.-[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 markets 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.

Section 68.-[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 to the court may seem just.

Section 69.-[Remedies for Breach of Warranty.] (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 been granted a remedy in any one of these ways, no other remedy can 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 at the time 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 53.

(6.) The measure of damages for the 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.

Section 70.-[Interest and Special Damages.] Nothing in this act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed.

PART VI
Interpretation

Section 71.-[Variation of Implied Obligations.] Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale.

Section 72.-[Rights may be Enforced by Action.] Where any right, duty or liability is declared by this act, it may, unless otherwise by this act provided be enforced by action.

Section 73.-[Rule for Cases Not Provided for by this Act.] In any case not provided for in this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to contracts to sell and to sales of goods.

Section 74.-[Interpretation shall Give Effect to Purpose of Uniformity.] This act shall be so interpreted and construed, if possible, as to effectuate its general purpose, to make uniform the laws of those states which enact it.

Section 75.-[Provisions Not Applicable to Mortgages.] The provisions of this act relating to contracts to sell and to sales do not apply, unless WOODW.SALES (2D ED.)-53

so stated, to any transaction in the form of a contract to sell or a sale which. is intended to operate by way of mortgage, pledge, charge, or other security. (1.) In this act, unless the context or sub

Section 76.-[Definitions.]

ject matter otherwise requires

"Action" includes counterclaim, set-off and suit in equity.

"Buyer" means a person who buys or agrees to buy goods or any legal successor in interest of such person.

"Defendant" includes a plaintiff against whom a right of set-off or counterclaim is asserted.

"Delivery" means voluntary transfer of possession from one person to another.

"Divisible contract to sell or sale" means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation.

"Document of title to goods" includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorsement or by delivery, goods represented by such document.

"Fault" means wrongful act or default.

"Fungible goods" means goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit.

"Future goods" means goods to be manufactured or acquired by the seller after the making of the contract of sale.

"Goods" include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

"Order" in sections of this act relating to the documents of title means an order by indorsement on the document.

"Person" includes a corporation or partnership or two or more persons having a joint or common interest.

"Plaintiff" includes defendant asserting a right of set-off or counterclaim. "Property" means the general property in goods, and not merely a special property.

"Purchaser" includes mortgagee and pledgee.

"Purchases" includes taking as a mortgagee or as a pledgee.

"Quality of goods" includes their state or condition.

"Sale" includes a bargain and sale as well as a sale and delivery.

"Seller" means a person who sells or agrees to sell goods, or any legal successor in interest of such person.

"Specific goods" means goods identified and agreed upon at the time a contract to sell or a sale is made.

"Value" is any consideration sufficient to support a simple contract. An antecedent or pre-existing claim, whether for money or not, constitutes value where goods or documents of titles are taken either in satisfaction thereof or as security therefor.

(2.) A thing is done "in good faith" within the meaning of this act when it is in fact done honestly, whether it be done negligently or not.

(3.) A person is "insolvent" within the meaning of this act who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is solvent within the meaning of the federal bankruptcy law or not.

(4.) Goods are in a "deliverable state" within the meaning of this act when they are in such a state that the buyer would, under the contract, be bound to take delivery of them.

Section 76a.-[Act Does Not Apply to Existing Sales or Contracts to Sell.] None of the provisions of this act shall apply to any sale, or to any contract to sell, made prior to the taking effect of this act. (Added in 1909.) Section 76b.-[No Repeal of Uniform Warehouse Receipt Act or Uniform Bills of Lading Act.] Nothing in this act or in any repealing clause thereof shall be construed to repeal or limit any of the provisions of the Act to make Uniform the Law of Warehouse Receipts, or of the Act to Make Uniform the Laws of Bills of Lading. (Added in 1909.)

Section 77.-[Inconsistent Legislation Repealed.] All acts or parts of acts inconsistent with this act are hereby repealed.

Section 78.-[Time when the Act Takes Effect.] This act shall take effect on the day of one thousand nine hundred and Section 79.-[Name of Act.] This act may be cited as the Sales Act.

IV. AMENDMENTS TO SALES ACT TO MAKE PROVISIONS FOR NEGOTIABILITY HARMONIOUS WITH THE BILLS OF LADING ACT AND THE STOCK TRANSFER ACT

[As Approved by the Commissioners on Uniform State Laws in 1922]

1. Section 32 of the Uniform Sales Act is hereby amended by striking out all of the section which follows the word "negotiated" and by substi tuting therefor the following:

"By any person in possession of the same, however such possession may have been acquired if, by the terms of the document, the bailee issuing it undertakes to deliver the goods to the order of such person, or if at the time of negotiation the document is in such form that it may be negotiated by delivery,"

so that the section shall read:

"Section 32. [Who may Negotiate a Document.] A negotiable document of title may be negotiated by any person in possession of the same, however such possession may have been acquired if, by the terms of the document, the bailee issuing it undertakes to deliver the goods to the order of such person, or if at the time of negotiation the document is in such form that it may be negotiated by delivery."

2. Section 38 of the Uniform Sales Act is hereby amended by striking out the words "induced by fraud, mistake, or duress, to intrust the possession or custody thereof to such person," and substituting instead therefor the words "deprived of the possession of the same by loss, theft, fraud, accident, mistake, duress, or conversion"; and also by striking out the words "without notice of the breach of duty, or fraud, mistake or duress," and by substituting therefor the words "in good faith, without notice of the loss, theft, breach of duty, or fraud, accident, mistake, duress or conversion," so that the section shall read:

"Section 38. [When Negotiation Not Impaired by Fraud, Mistake or Duress.] The validity of the negotiation of a negotiable, document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the document was deprived of the possession of the same by loss, theft, fraud, accident, mistake, duress, or conversion, if the person to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor in good faith without notice of the breach of duty, or loss, theft, fraud, accident, mistake, duress or conversion."