if not, that the object of pursuing the insolvent vendee is not worth the trouble and expense.' It is, however, well understood that the first duty of the vendor after regaining possession is to hold the goods until the purchase price becomes due under the contract of sale, so as to deliver them upon payment."

§ 1626. Duty to hold goods until price due. This duty, however, to hold the goods until the purchase price becomes due is not an invariable one. Suppose, for example, that the goods are perishable, or that the price is subject to fluctuations, or the term of credit is very long, or the goods are expensive to keep, while the buyer at the time fixed for delivery is insolvent: would the rule then apply? Upon this subject the supreme court of Ohio1 has said: "Upon what just principle can the seller in such a case be required to hold the goods until the expiration of the credit? It is true that, at that time, the vendee may again be solvent, and able to pay. There is no presumption, or assurance, that he will. If any presumption arises, it is rather that the insolvency will continue, which is more in accordance with the experience of the commercial world. But, as we have seen, it is part of the vendee's engagement that he will maintain his credit, which is broken by his insolvency. And it would be unjust to require the vendor to sustain the loss resulting from the destruction or deterioration of the goods in the meantime, which, in many instances, must ensue if the seller is compelled to keep the goods shut up, and take the risk of the future solvency of the buyer. The injustice of such a requirement is conceded where the goods are of a perishable nature; and the vendor, it is now settled, is not obliged to keep goods of that character until the termination of the credit. In the notes to Lickbarrow v. Mason, in Smith's Leading Cases, it is said: 'But what, it will be said, if the goods be of so perishable a nature that the vendor cannot keep

1 Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. R. 1124, 34 Am. St. R. 531; Williston's Cases, 426. See also West

v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300.

2 Vol. I, pt. 2, p. 1199.

them until the time of credit has expired? In such a case it is submitted that courts of law, having originally adopted this doctrine of stoppage in transitu from equity, would act on equitable principles by holding the vendor invested with an implied authority to make the necessary sale.'”

§ 1627.. "It is insisted, however," continued the court, "that the right of sale in such cases constitutes an exception to the rule. In our opinion, the reasons upon which the exception rests, if it be such, should make the exception the general rule. The value of many kinds of merchandise, not perishable, depends largely upon their being in the market at the appropriate seasons, and to supply temporary demands; and if not available for those purposes at the proper time, they become comparatively worthless, or so reduced in value as to entail great loss, which may be less only in degree, though greater in amount, than where the goods are perishable; and it is no more just or equitable to subject the vendor to loss in the one case than in the other. The right of resale ought not, we think, be made to depend upon the degree or extent of the loss that must ensue, if it should be denied. It rests upon a different principle, and grows out of the failure of the vendee to keep his engagement."

§ 1628. Buyer's right to redeem the goods. The assertion of a lien or the exercise of the right of stoppage does not, as has been already seen, operate as a rescission of the sale. Either act presupposes that the title is in the buyer and that the seller has simply a charge upon the goods to enforce the payment of the price. The vendee, therefore, at any time before his right has been foreclosed, may tender payment of the price and redeem the goods. As stated in one case," "the cases agree that the vendee may, at any reasonable time after the vendor has stopped the goods, enforce his claim to them by the payment of the purchase-money according to the terms of the original contract."

1 Ante, § 1523.

2 Ante, § 1612.

3 Patten's Appeal, 45 Pa. St. 151, 84 Am. Dec. 479.

§ 1629. Seller as agent of the buyer. It is commonly said that, in making sale of the goods, the seller acts as agent of the buyer,' but this is true only in a somewhat qualified sense. The goods-speaking still of the case where the title has passed are the goods of the buyer, and the seller, in selling them, sells the buyer's title therein, but he does this not by virtue of any present contractual consent or authorization of the buyer, but rather by virtue of an authority conferred upon him by the law for the protection of his lien upon, or interest in, them. He is agent of the buyer in the same sense that a pledgee is agent of the pledgor in selling the goods pledged, and no further.2

When, hereafter,3 the vendor's right of resale where the title has not passed arises for consideration, the oft-repeated statement that the seller acts as agent for the buyer will be seen to be still more inaccurate.

§ 1630.. Even, however, if the seller is to be regarded as agent of the buyer, it seems to have been necessary to decide what would have been thought apparent from the very nature of the case, that this fact does not make the latter so far the absolute owner of the goods as to cut off the former's right to proceed against them to secure his pay.*

1 See Sands v. Taylor, 5 Johns. (N. Y.) 395, 4 Am. Dec. 374; Pollen v. Le Roy, 30 N. Y. 549; Smith v. Pettee, 70 N. Y. 13; Davis Sulphur Ore Co. v. Atlanta Guano Co. (1900), 109 Ga. 607, 34 S. E. R. 1011; Bagley v. Findlay, 82 Ill. 524.

ciency from the assets of the buyer; and it was claimed that in selling them he had acted as agent of the buyer, thereby recognizing the latter's title, and had put himself in contempt by selling property in the legal custody of the receiver without

2 See Moore v. Potter, in following previous permission of the court. note.

3 See post, § 1645.

4 Moore v. Potter, 155 N. Y. 481, 50 N. E. R. 271, 63 Am. St. R. 692. The buyer, a corporation, had become insolvent and gone into the hands of a receiver. The seller, after reselling the goods refused by the buyer and the receiver, sought to recover the defi

The court below sustained this view, but its judgment was reversed in the court of appeals, where Martin, J., for the court, said:

"It is to be observed that in many of the cases cited it has been said that, in thus selling the property, the vendor acts as the agent of the vendee for that purpose. Clearly, the use

out complying with the terms of the contract. To say, then, that the vendor becomes the agent of the vendee in making the sale is not quite correct, and is to be regarded, at most, as a mere fiction of law, and the beneficial title does not pass to the vendee.

§ 1631. Buyer as agent of seller.-In making the resale the seller need not act in person. He may employ an agent here as in any other case. He may even employ the buyer to of the words 'as agent of the vendee' was not intended as a determination that the relation between the parties was that which ordinarily exists be tween a principal who owns property and an agent who may be authorized to manage or sell it. But it is a general expression, which has been somewhat inaccurately used to define the right of a vendor to make a resale and hold the vendee responsible for his loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual damages he may sustain. Doubtless, in making it, the vendor would be bound to sell within a reasonable time, to exercise good faith to effect a sale at the best price he could obtain, to follow any proper instructions the vendee might give as to the time and manner in which it should be made, and to give credit upon the contract price for the amount received. His duties in making the sale may, in some respects, resemble those of an agent, and thus the expression that he acts as the agent of the vendee' has arisen. That he owes the vendee the duty to thus conduct the sale is clear, but that his acts in making it can be properly regarded as the acts of an 'agent,' as that word is generally understood, is quite otherwise. Surely, the fact that a vendor might seek this remedy against an insolvent or doubtful vendee would not confer upon the latter such a title as would enable him to demand and hold the property with

"The first case in this state which has come to our notice relating to this subject is Sands v. Taylor, 5 Johns. 395. In that case the right to make a resale and hold the vendee responsible for the difference between the contract price and the amount received upon a resale was considered and held to exist by a unanimous court. Several opinions were written. Some of the judges expressed the view that, after a vendee had refused to accept the property, the vendor became a trustee or agent by necessity to sell the property, but that the exercise of the right to sell was not a waiver of his rights under the contract. Others based this right, not upon any principle of agency, but upon the existence of a common usage, which was said to be convenient and reasonable, and should be sustained by the courts. While the court unanimously held that the right of resale existed, there was some difference of opinion as to the precise language which should be employed in describing that right, or the principle upon which it was founded; some holding that it existed by virtue of a common usage, which was sanctioned by the courts, while others were of opinion that the vendor became an agent of the vendee by necessity. It is quite obvious that the language employed in

make the resale, and, if he does so, it will not necessarily result in a rescission of the contract.1

§ 1632. Notice of resale. The question of the necessity of giving the buyer notice of the resale, where the buyer is to be held responsible upon the basis of its results, involves at least two separate ideas the necessity of giving notice of the seller's intention to resell, and the necessity of giving notice of the time and place of the resale.

1. Notice of seller's purpose to resell.- As to the necessity of notice of the intention to resell, the author