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§ 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, 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.

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§ 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

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.

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

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.

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.

§ 1633.

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

that case has led to the use of the words 'as agent for the vendee' in stating this rule in the subsequent cases. When, however, we consider the manner in which the use of this phrase arose, and the sense in which it was used, it becomes quite apparent that it was employed merely for the purpose of briefly describing the right which a vendor possessed to make a resale. It is clear that the court in that case did not hold, or intend to hold, that the general relation of principal and agent existed between the parties. But, even if it could be regarded as proper in such a case to define the position of a vendor as that of an agent by necessity, yet, when the sense in which the term is used is understood, it is plain that it is not to be regarded as an assertion that the vendee becomes the absolute owner of the property by the act of the vendor in thus seek ing to establish the amount of his actual loss. It would be manifestly unjust to hold that in such a case the title passed to a vendee, and that the vendor could not adopt this method of reducing the amount of his damage, and ascertaining the precise amount of his loss, without assuming

the risk which might follow if the title actually passed to the vendee without payment, upon the vendor's election to pursue that method of indemnifying himself. Moreover, even if it could be said that the title passed to the vendee, still the vendor would retain his lien for the purchase price that could be foreclosed by a sale, and which would continue in the vendor not only the right of possession, but the right to sell and hold the defendant for any deficiency that might arise. Although a vendor may elect to pursue that method of indemnifying himself against loss, the title still remains in him to an extent which would prevent the vendee from demanding or recovering the property sold without complying with the provisions of the contract. Therefore, the general term erred in holding that the title to this property passed to the receiver, so that the vendor was unauthorized to pursue that method of ascertaining the amount of the loss for which the defendant should be held responsible without the consent of the court."

1 Grist v. Williams, 111 N. C. 53, 15 S. E. R. 889, 32 Am. St. R. 782.

ities seem to be in hopeless conflict. On the one hand, it is said, in Illinois1 and elsewhere, that no such notice is necessary, and this is declared to be the rule after "a review of the authorities, American and English." On the other hand, in Indiana it is declared that such notice is indispensable, and that this is the rule sustained by the weight of authority. "The giving of notice," it is there said, "is a material element in the cause of action, and it must be stated in the complaint." In New York notice seems not to be indispensable, although the court, in a late case,' say "it is always wiser for the vendor to give notice of his intention to resell, and quite unsafe to omit it." In several of the cases upon this subject the two kinds of notice above referred to, i. e., notice of intention to resell, and notice of the time and place of sale, are confused, and in some distinction is made between cases in which the title has passed and those in which it has not passed, while in other cases such a distinction is ignored.

§ 1634. The rule, however, which, it is believed, is sustained by the weight of authority is, that unless the goods are perishable, or other special circumstances would render notice impracticable or unavailing, notice of the seller's intention to resell must be given, if the seller intends to make the

1 See Ullman v. Kent, 60 Ill. 271; Maulding v. Steele, 105 Ill. 644; Plumb v. Campbell, 129 Ill. 101, 18 N. E. R. 790; Roebling Sons' Co. v. Fence Co., 130 Ill. 660, 22 N. E. R. 518; Morris v. Wibaux, 159 Ill. 627, 43 N. E. R. 837; Wrigley v. Cornelius, 162 Ill. 92, 44 N. E. R. 406; Rice v. Glass Co., 88 Ill. App. 407. See also Arnold v. Carpenter, 16 R. I. 560, 18 Atl. R. 174; Rosenbaum v. Weeden, 18 Gratt. (Va.) 785, 98 Am. Dec. 737.

2 See Waples v. Overaker, 77 Tex. 7, 13 S. W. R. 527, 19 Am. St. R. 727 [but see Leonard v. Portier (Tex.), 15 S. W. R. 414]; Magnes v. Sioux City Nursery Co. (1900), 14 Colo. App. 219,

59 Pac. R. 879 [though the rule is said to be confined to the circumstances of that case]; Clore v. Robinson (1897), 100 Ky. 402, 38 S. W. R. 687.

3 See Dill v. Mumford, 19 Ind. App. 609, 49 N. E. R. 861 [citing Ridgley v. Mooney, 16 Ind. App. 362, 45 N. E. R. 348; Redmond v. Smock, 28 Ind. 365; Pittsburgh, etc. R. Co. v. Heck, 50 Ind. 303; Fell v. Muller, 78 Ind. 507; Dwiggins v. Clark, 94 Ind. 49; Shipps v. Atkinson, 8 Ind. App. 505, 36 N. E. R. 375; Browning v. Simons, 17 Ind. App. 45, 46 N. E. R. 86].

4 Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415.

price realized upon the resale the basis of his recovery against the buyer.1

§ 1635. Even though otherwise requisite, the notice may be waived by the buyer; and such a waiver may well be presumed where the buyer tells the seller he may do what he chooses with the goods.2

§ 1636. —. No particular form of notice seems to be requisite. The seller, it has been said, "must manifest his election by preliminary notice that he intends to sell and hold the vendee for the loss, or notice to that effect." But, on the other hand, it has been said that it is not necessary "for the notice to state just what action" the seller will "take to indemnify himself against loss, even if it be conceded that a notice was required;" and under this view a notice by the seller that he would "protect himself" was held sufficient, as the buyer must be presumed to have known what right his failure to receive the goods would give the seller.*

§ 1637. 2. Notice of time and place of resale. But whatever difference of opinion there may be respecting the necessity for notice of the purpose to resell, it seems quite unanimously agreed that notice of the time and place of the sale is not required, though, when practicable, the giving of such a notice would be safe and proper."

§ 1638. Place of resale. With respect of the place at which the resale should be made, no hard-and-fast rule can be laid

1 See Penn v. Smith, 98 Ala. 560, 12 S. R. 818; Holland v. Rea, 48 Mich. 218, 12 N. W. R. 167; Green v. Ansley, 92 Ga. 647, 19 S. E. R. 53; Davis Sulphur Ore Co. v. Atlanta Guano Co. (1900), 109 Ga. 607, 34 S. E. R. 1011; Leonard v. Portier (1890, Tex. App.). 15 S. W. R. 414; Winslow v. Harriman Iron Co. (1897, Tenn. Ch.), 42 S. W. R. 698.

2 Wrigley v. Cornelius (1896), 162 Ill. 92, 44 N. E. R. 406.

3 Holland v. Rea, 48 Mich. 218, 12 N. W. R. 167.

+ Ingram v. Wackernagle, 83 Iowa, 82, 48 N. W. R. 998.

5 See Pollen v. Le Roy, 30 N. Y. 549; Rosenbaum v. Weeden, 18 Gratt. (Va.) 785, 98 Am. Dec. 737.

6 See Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415.

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