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lien revives, and the assertion of the lien, as has been already seen,' does not of itself effect a rescission of the sale. The goods still remain the goods of the buyer until the seller has in some way foreclosed his right; and until that time the buyer may redeem them.2
§ 1613. Remedy of seller to secure payment.-The remedy of the seller who has regained possession and revived his lien by stopping the goods in transit is that which has been already referred to in connection with the lien, namely, a sale of the goods in execution of his lien. The fuller treatment of the subject of sale for this purpose will be found in subdivision V.
SELLER'S RIGHT OF STOPPAGE ON EXECUTORY SALE.
§ 1614. Nature of this right. As has been already noticed, the right of stoppage in transitu, strictly so called, exists only where the title to the goods has passed to the buyer, and is therefore a right exercised by the seller upon the goods of the purchaser. But, as has also been observed, a right in many respects analogous to this, and one in fact often confused with it, exists where the sale was simply executory and where the goods, still belonging to the seller, are going forward to the buyer under an arrangement, express or implied, that the title shall or does not pass until they reach their destination, or until their approval by the purchaser, or until some other precedent condition has been performed.
In such a case the seller may stop his own goods while in transit at any time. He may do so of his mere whim and without reason, subject of course to the buyer's
(Mass.) 307, 23 Am. Dec. 607; Stanton v. Eager, 16 id. 467; Arnold v. Delano, 4 Cush. (Mass.) 33, 50 Am. Dec. 754; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; 15 Me. 314, 33 Am. Dec. 617; Rogers v. Thomas, 20
Conn. 53; Jordan v. James, 5 Ohio, 88;
2 See post, § 1628.
3 Pattison v. Culton (1870), 33 Ind. 240, 5 Am. R. 199.
claim for damages for the non-performance of the contract; and clearly, if the buyer be found insolvent, the seller may properly stop in transit goods which have not been paid for, upon the general ground that he is not obliged to deliver the goods without payment to an insolvent buyer, and because it is an implied condition that the buyer upon credit shall keep his credit good.1
§ 1616. Moreover, if at some stage in the transit before actual delivery the title to the goods should change and vest in the buyer, the seller's right of stoppage, strictly so called, would doubtless then arise, if thereafter, and before the termination of the transit, the buyer should be found insolvent.
§ 1617. How right exercised-Its effect. This form of the right of stoppage may be exercised by any of the methods which would suffice in case the title had already passed. Its effect, however, would be to restore to the seller the possession of his own goods and to give him the same personal remedies against the defaulting buyer which exist in any case of the breach of an executory contract-remedies which are considered in later sections.2
OPTION OF SELLER AS TO REMEDIES.
$1618. What remedies the seller may pursue.-"The vendor of personal property," it was said in a leading case,3 "in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) He may keep the property as his own, and recover the difference between Dustan v. McAndrew, 44 N. Y. 72.
1 Pattison v. Culton, supra. 2 See post, § 1672.
the market price, at the time and place of delivery, and the contract price." This choice of remedies has been frequently asserted, and, with perhaps some modification, seems to have become an established doctrine of our law.1
§ 1619. Without stopping now to examine each branch of the rule separately, it may be said that the first remedy proposed is chiefly one against the buyer personally rather than against the goods, and will be considered in the following chapter. The second remedy proposed is one against the goods themselves, and under the general head of the seller's right of resale, both when the title has passed to the buyer and when it has not passed, will be considered in the sections of this chapter which immediately follow. The third remedy, of treating the contract as rescinded, and keeping the property as his own, will be considered later.2
§ 1620. Equitable remedies.- In addition to these remedies, either by personal action against the buyer at law or by resale of the goods, there is doubtless a remedy in equity for the foreclosure of the seller's lien. Thus, for example, where, by proper notice, the seller has stopped the goods in transit, he may have the aid of equity to enjoin interference with his rights or to foreclose his lien upon the goods. "I should be prepared," said Lord Justice Cairns in one case,3 "to hold this to be a case entirely within the province of this court, and depending on the ordinary principles which regulate in equity the relations of mortgagor and mortgagee, whether of real or personal property, although, for obvious reasons, cases of this kind are more generally and more conveniently brought into a court of law."
1 See Hayden v. Demets, 53 N. Y. 426; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415: Mason v. Decker, 72 N. Y. 595; Bagley v. Findlay, 82 Ill. 524; Ames v. Moir, 130 Ill. 582, 22 N. E. R. 535; Williams v.
Crosby Lumber Co., 118 N. C. 928, 24
2 See post, § 1681.
3 Schotsmans v. Lancashire, etc. Ry. Co. (1867), L. R. 2 Ch. App. 332.
THE SELLER'S RIGHT OF RESALE.
§ 1621. How here considered.-The question of the right of the seller to resell the goods may arise either where the original sale was complete and executed or where it still remained executory. Each class of cases will be separately considered.
1. When Title has Passed.
§ 1622. In general. The seller of goods who, notwithstanding the passing of the title, has them still in his possession, either because they have never passed beyond his control or because he has regained them by stopping them in transit, finds himself, upon default of the buyer to take and pay for them, whether because the latter refuses to recognize the obligation of the contract or because of his insolvency and consequent inability to perform, in possession of a right which has been seen to be at least a lien,' and, according to the better statement, a special property in the goods which now avails for his protection.
How much greater than a mere lien it is will be apparent when it is recalled that the ordinary common-law lien is a bare right of detention with no power of sale attached to make the right effective, while the lien of the unpaid seller carries with it the right to sell the goods for the satisfaction of the seller's claim.2
The difference between the two situations was
§ 1623. stated in a recent case as follows: "When the
1 See ante, § 1471.
before the New York court of appeals price of goods sold on credit is due
2 See this fully explained in Arnold v. Carpenter, 16 R. I. 560, 18 Atl. R. 174.
So also in Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415, it is said: "The right of the unpaid vendor is deemed sometimes analo
3 Tuthill v. Skidmore, 124 N. Y. 148, gous to the pawnee's right of sale, 26 N. E. R. 348.
and sometimes to the right of stop
and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor's right to the property is often called a lien, but it is greater than a lien. In the absence of an express power the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the extent of his right, but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitus has begun, he can, by a sale made on notice1 to the vendee, vest a purchaser with a good title. His right is very nearly that of a pledgee with power to sell at private sale in case of default." The occasion here referred to for the exercise of the right is that of the insolvency of the buyer, but the right extends to the case in which the buyer's default is wilful and he is seeking to escape the obligations of the contract, as well as to cases of mere insolvency.
§ 1624. To what kinds of property right of resale attaches. This right of resale extends to personal property of every description to every kind, in fact, which could be made the subject of the original agreement to sell. It extends, therefore, to an interest in a partnership whose assets embraced both real and personal property.3
§ 1625. When right may be exercised."There is a dearth of authority," said the supreme court of Illinois in a recent case, "as to what steps the vendor should take to enforce his lien after stopping the goods, to be accounted for, no doubt, as was said in Newhall v. Vargas,5 'by supposing that the vendor usually obtaining all the goods sold finds he is fully paid, or,
page in transitu. Whatever it be, it is at least a lien upon the property sold for the purchase price so long as it remains undelivered, which lien the vendor may enforce by a sale, and then recover any balance of the contract price unrealized."
Whether notice is indispensable is considered later. See § 1632, post.
2 Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415; Pollen v. Le Roy. 30 N. Y. 549.
3 Van Brocklen v. Smeallie, supra. 4 Shaw v. Lady Ensley Coal Co., 147 Ill. 526, 35 N. E. R. 620.
515 Me. 314, 33 Am. Dec. 617.