something which the seller had not agreed to receive. The buyer, therefore, who has obtained the goods on the basis of a cash sale cannot tender payment in the seller's own note or other obligation, or satisfy the duty to pay by offering to give credit for the price on the seller's indebtedness to the buyer. If the buyer insists upon so doing and refuses payment in cash, the seller may recover his goods.1 $1438. Set-off.- Where, however, instead of treating the contract as rescinded and recovering the goods, the seller affirms the sale and sues for the price, he cannot then prevent the buyer from setting off any proper claim, even though it 1 Thus, in Wabash Elevator Co. v. First Nat. Bank (1872), 23 Ohio St. 311, it was held that the seller, on a contract silent as to the medium of payment, could recover the goods when the buyer refused the cash, but offered to give credit on account. The court said that under the circumstances it was clearly a sale for cash, and applied the rule, already discussed ante, §§ 538-557, that "A delivery with the expectation of receiving immediate payment is not absolute, but conditional until payment is made, and, where there is no waiver of payment, no title vests in the purchaser till the price is paid" [citing Adams v. O'Connor, 100 Mass. 515; Whitwell v. Vincent, 4 Pick. 449; Leven v. Smith, 1 Denio, 571; Conway v. Bush, 4 Barb. 564; Merrill v. Stanwood, 52 Me. 65; Keeler v. Field, 1 Paige, 312; Russell v. Minor, 22 Wend. 659; Hanson v. Meyer, 6 East, 614; Hays v. Currie, 3 Sandf. Ch. 585; Conger v. Railroad Co., 17 Wis. 477; Powell v. Bradlee, 9 Gill & J. 220; Haggerty v. Palmer, 6 Johns. Ch. 437; Acker v. Campbell, 23 Wend. 372; Coggill v. Railroad Co., 3 Gray, 545]. So, in Wilmarth v. Mountford (1821), 4 Wash. (U. S. C. C.) 79, 30 Fed. Cas., p. 70, it is held that, when goods have been purchased to be paid for on delivery, and, instead of payment in money, a promissory note which has been dishonored, given by the owner of the goods, is offered in payment, the property is not changed, even though the seller may have taken the goods to the place where they were to be delivered and there laid them down in anticipation of immediate payment in money. The same ruling, for like reasons, was made in Allen v. Hartfield (1875), 76 Ill. 358, where the buyer of horses told the seller to put them into the buyer's barn and then come to the house for his pay. The seller did so, but when he came to the house the buyer tendered him three notes purporting to be due from him, but which he claimed he did not owe. It was held no payment, and that the seller might recover his horses. A lawful tender cannot be made by offering the creditor's overdue promissory note, and insisting that it be set off against the debt. Barker v. Walbridge (1869), 14 Minn. 469, citing Cary v. Bancroft, 14 Pick. (Mass.) 315, and Hallowell & Augusta Bank v. Howard, 13 Mass. 235. were expressly agreed that the sale was to be for ready money. Set-off is a statutory right of which the defendant may avail himself, notwithstanding a general agreement for a cash sale.' § 1439. Payment in goods.- Contracts for the delivery of goods in payment are usually one of three kinds: 1. Contracts to pay a given sum in goods at a fixed rate. 2. Contracts to pay a given sum in goods, no rate being fixed. 3. Contracts to pay the given sum or to furnish designated goods. § 1440. As to the first of these classes some uncertainty exists whether the agreement is to be regarded as giving the payor the option to pay the money or deliver the goods, as he may elect, or as an absolute agreement to deliver such a quantity of goods as is represented by the rate fixed, regardless of its value at the time of payment. The question, obviously, becomes important where the value of the goods has changed in the interval. It is held in some cases that the contract is one for the delivery of the goods in any event. If then the goods are not delivered, the action must be for the breach of the contract and the measure of damages will be the value of the goods at the time of the breach.2 Other cases, on the contrary, regard the contract as one giving the payor the option to deliver the goods or pay the money at the time agreed upon.3 The weight of authority seems to sustain this view. § 1441. With reference to the contracts of the second class it seems everywhere agreed that the payor has the option 1 Eland v. Karr (1801), 1 East, 375; Cornforth v. Rivett (1814), 2 M. & Sel. 510. 23 Pars. on Cont. 215, citing Meason v. Philips, Addis. (Pa.) 346; Price v. Justrobe, Harper (S. C.), 111; Cole v. Ross, 9 B. Mon. (Ky.) 393, 50 Am. Dec. 517; Mattox v. Creig, 2 Bibb (Ky.), 584; McDonald v. Hodge, 5 Hayw. (Tenn.) 85; Edgar v. Boies, 11 Serg. & R. (Pa.) 445, per Gibson, C. J. Where a note is "payable in levee to discharge the debt in goods or money, as he may elect.' This option is, of course, expressly given in the contracts of the third class. The result, therefore, is that the payor has the option in the second and third classes, and, by the weight of authority, in the first also, to discharge the obligation in goods or money, as may seem most advantageous to him at the time. payment is due. § 1442. — If goods not delivered, payment due in cash. In none of the cases, however, does the option survive the time for performance, and all authorities agree that if the payor has an option, but does not on or before maturity deliver the goods, his option is lost, and the agreement then becomes an absolute one for the payment of the money and may be enforced accordingly. This rule, of course, would not apply where the payor—as in some cases of the first class—has no option.3 § 1443. To the seller or his agent.- Payment for the goods must, of course, be made either to the seller in person or to some agent authorized by him to receive payment. The fuil discussion of payment to an agent belongs properly to a treatise upon the law of agency, and has been dealt with by the present writer in another work. Some discussion of it here, particularly when the authority is implied rather than express, seems, however, to be appropriate, and will be given. Of an 1 Smith v. Coolidge (1896), 68 Vt. 516, 35 Atl. R. 432 [citing Wilkins v. Stevens, 8 Vt. 214; Perry v. Smith, supra; Kent v. Bowker, 38 Vt. 148]. 2 New York News Pub. Co, v. National Steamship Co. (1895), 148 N. Y. 39, 42 N. E. R. 514; Pinney v. Gleason, supra; Choice v. Moseley, 1 Bailey (S. C.), L. 136, 19 Am. Dec. 661; Perry v. Smith, supra; Read v. Sturdevant, 40 Vt. 521; Smith v. Coolidge, 68 Vt. 516, 35 Atl. R. 432; Deel v. Berry, 21 Tex. 463, 73 Am. Dec. 236; Dunman v. Strother, 1 Tex. 89, 46 Am. Dec. 97; Baker v. Todd, 6 Tex. 273, 55 Am. Dec. 775. 3 Johnson v. Dooley, 65 Ark. 71, supra. express authority to receive payment nothing more need here be said than that, if the authority exists and is properly exercised, the payment must be good. 1. Implied Authority to Receive Payment. § 1444. General considerations.-Repeating here to some extent what the writer has said in another treatise,' it may be noticed that whether an agent authorized to sell personal property has implied authority to receive payment is a question upon which there has been much difference of opinion. It will be obvious that its solution must depend largely upon the nature of the particular transaction and the usages if any in relation thereto. If a merchant places behind his counters a clerk to sell goods, it could not be doubted that, in the absence of a known custom to pay a cashier or other person, the clerk would have implied power to receive, at the time of the sale, payment for the goods sold by him. Whether he would have authority at some subsequent time to receive payment for the goods sold, after the account had gone upon the books, and the matter had passed into other hands, is evidently not so clear. If payment were made to him at his usual place in the store, the case would present a different aspect than if it had been made to him at his own home or upon the street. So, too, if he were one of many salesmen in a large establishment in the metropolis, a different case would be presented than if he were the only clerk in a country store, combining in himself salesman, bookkeeper, porter and collector.3 1 See Mechem on Agency, § 336 et But there is no implieȧtion from such seq. 2 See Hirshfield v. Waldron, 54 Mich. 649, 20 N. W. R. 628, where Champlin, J., says: "The usual employment of a clerk in a retail store is to sell goods to customers or purchasers, and it is implied from such employment that he has authority to receive pay for them on such sale. employment that he has authority, after the goods are delivered and taken from the store, to present bills and collect money due to his employers, because it is not in the scope of the usual employment of such clerks." 3 See Davis v. Waterman, 10 Vt. 526, 33 Am. Dec. 216, where it is held that a clerk in a country store with Again, if he were sent about the country with authority to sell goods intrusted to his possession for that purpose, authority to receive payment therefor would be implied, as it would not be presumed that the principal intended that they should be parted with without payment. But if his authority was simply to solicit orders for goods, a sample of which he had in his possession, it being left for the principal to deliver the goods in pursuance of the orders taken, the question whether the agent might subsequently collect payment merely as an incident of the authority to take orders would present other considerations.2 1445. Authority to receive payment not implied from possession of bill.-The mere fact that one claims to be authorized to receive payment is no evidence of his authority, nor can such authority be implied from the mere possession by the assumed agent of the bill or account, though made out upon the principal's bill-head and in his own handwriting.3 § 1446. Agent having possession or other indicia of ownership may receive payment.- Where the principal intrusts the agent with the possession of the goods to be sold and authorizes him to sell and deliver them, authority to receive payment therefor will be implied, and a payment made to the agent at the time of the sale and delivery, or as part of the same transaction, will be binding upon the principal; of course, whom are left the goods and demands of his employer has charge of both, and in the absence of his principal has power to receive pay on the demands and to institute suits for their security when an emergency arises. 1 See second section following. 2See post, § 1447. 3 Hirshfield v. Waldron, 54 Mich. 649, 20 N. W. R. 628; Dutcher v. Beckwith, 45 Ill. 460, 92 Am. Dec. 232; Kornemann v. Monaghan, 24 Mich. 36; Grover & Baker Sew. Machine Co. v. Polhemus, 34 Mich. 247; Rey nolds v. Continental Ins. Co., 36 Mich. 131; McDonough v. Heyman, 38 Mich. 334. 4 Butler v. Dorman, 68 Mo. 298, 30 Am. R. 795; Sumner v. Saunders, 51 Mo. 89; Rice v. Groffmann, 56 Mo. 434; Higgins v. Moore, 34 N. Y. 417; Seiple v. Irwin, 30 Pa. St. 513; Capel v. Thornton, 3 Car. & P. 352; Pickering v. Busk, 15 East, 38; Greely v. Bartlett, 1 Greenl. (Me.) 172, 10 Am. Dec. 54; Goodenow v. Tyler, 7 Mass. 36, 5 Am. Dec. 22; Brooks v. Jameson, 55 Mo. 505; Lumley v. Corbett, 18 Cal. |