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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.
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.
$ 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. ciency from the assets of the buyer; (N. Y.) 395, 4 Am. Dec. 374; Pollen v. and it was claimed that in selling Le Roy, 30 N. Y.549; Smith v. Pettee, them he had acted as agent of the 70 N. Y. 13; Davis Sulphur Ore Co. v. buyer, thereby recognizing the latAtlanta Guano Co. (1900), 109 Ga. 607, ter's title, and had put himself in 34 S. E. R. 1011; Bagley v. Findlay, contempt by selling property in the 82 Ill. 524.
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, 3 See post, § 1645.
but its judgment was reversed in the 4 Moore v. Potter, 155 N. Y. 481, 50 court of appeals, where Martin, J., N. E. R. 271, 63 Am. St. R. 692. The for the court, said: buyer, a corporation, had become in- It is to be observed that in many solvent and gone into the hands of a of the cases cited it has been said receiver. The seller,after reselling the that, in thus selling the property, the goods refused by the buyer and the vendor acts as the agent of the venreceiver, sought to recover the defi- dee for that purpose. Clearly, the use $ 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' out complying with the terms of the was not intended as a determination contract. To say, then, that the venthat the relation between the parties dor becomes the agent of the vendee was that which ordinarily exists be in making the sale is not quite cortween a principal who owns property rect, and is to be regarded, at most, and an agent who may be authorized as a mere fiction of law, and the beneto manage or sell it. But it is a gen- ficial title does not pass to the vendee. eral expression, which has been some- “The first case in this state which what inaccurately used to define the has come to our notice relating to right of a vendor to make a resale this subject is Sands v. Taylor, 5 and hold the vendee responsible for Johns. 395. In that case the right to his loss. It is quite manifest that a make a resale and hold the vendee reresale made under such circum- sponsible for the difference between stances is not made by the vendor the contract price and the amount strictly as the agent of the vendee, received upon a resale was considbut he acts for himself in disposing ered and held to exist by a unaniof the property for the purpose of as- mous court. Several opinions were certaining the actual damages le written. Some of the judges exmay sustain. Doubtless, in making pressed the view that, after a vendee it, the vendor would be bound to sell had refused to accept the property, within a reasonable time, to exercise the vendor became a trustee or agent good faith to effect a sale at the best by necessity to sell the property, but price he could obtain, to follow any that the exercise of the right to sell proper instructions the vendee might was not a waiver of his rights under give as to the time and manner in the contract. Others based this right, which it should be made, and to give not upon any principle of agency, but credit upon the contract price for the upon the existence of a common us
a amount received. His duties in mak- age, which was said to be convenient ing the sale may, in some respects, and reasonable, and should be sus resemble those of an agent, and thus tained by the courts While the the expression that he acts as the court unanimously held that the agent of the vendee' has arisen. That right of resale existed, there was he owes the vendee the duty to thus some difference of opinion as to the conduct the sale is clear, but that his precise language which should be acts in making it can be properly re- employed in describing that right, or garded as the acts of an 'agent,' as the principle upon which it was that word is generally understood, is founded; some holding that it exquite otherwise. Surely, the fact that isted by virtue of a common usage, a vendor might seek this remedy which was sanctioned by the courts, against an insolvent or doubtful ven- while others were of opinion that dee would not confer upon the latter the vendor became an agent of the such a title as would enable him to vendee by necessity. It is quite oh demand and hold the property with vious that the language employed in
make the resale, and, if he does so, it will not necessarily result in a rescission of the contract.
$ 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 the risk which might follow if the words 'as agent for the vendee' in title actually passed to the vendee stating this rule in the subsequent without payment, upon the vendor's cases. When, however, we consider election to pursue that method of inthe manner in which the use of this demnifying himself. Moreover, even phrase arose, and the sense in which if it could be said that the title passed it was used, it becomes quite appar- to the vendee, still the vendor would ent that it was employed merely for retain his lien for the purchase price the purpose of briefly describing the that could be foreclosed by a sale, right which a vendor possessed to and which would continue in the make a resale. It is clear that the vendor not only the right of possescourt in that case did not hold, or in- sion, but the right to sell and hold tend to hold, that the general rela- the defendant for any deficiency that tion of principal and agent existed might arise. Although a vendor between the parties. But, even if it may elect to pursue that method of could be regarded as proper in such indemnifying himself against loss, a case to define the position of a ven- the title still remains in him to an dor as that of an agent by necessity, extent which would prevent the venyet, when the sense in which the dee from demanding or recovering term is used is understood, it is plain the property sold without complying that it is not to be regarded as an with the provisions of the contract. assertion that the vendee becomes Therefore, the general term erred in the absolute owner of the property holding that the title to this property by the act of the vendor in thus seek. passed to the receiver, so that the ing to establish the amount of his vendor was unauthorized to pursue actual loss. It would be manifestly that method of ascertaining the unjust to hold that in such a case the amount of the loss for which the detitle passed to a vendee, and that the fendant should be held responsible vendor could not adopt this method without the consent of the court." of reducing the amount of his dam- 1 Grist v. Williams, 111 N. C. 53, age, and ascertaining the precise 15 S. E. R. 889, 32 Am. St. R. 782. amount of his loss, without assuming
ities seem to be in hopeless conflict. On the one hand, it is said, in Illinois' 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 III. 271; 59 Pac. R. 879 [though the rule is said Maulding v. Steele, 105 Ill. 614; to be confined to the circumstances Plumb v. Campbell, 129 1l. 101, 18 of that case); Clore v. Robinson N. E. R. 790; Roebling Sons' Co. v. (1897), 100 Ky. 402, 38 S. W. R. 657. Fence Co., 130 III. 660, 22 N. E. R. 518; 3 See Dill v. Mumford, 19 Ind. App. Morris v. Wibaux, 159 Ill. 627, 43 N. 609, 49 N. E. R. 861 (citing Ridgley v. E. R. 837; Wrigley v. Cornelius, 162 Mooney, 16 Ind. App. 362, 45 N. E. R. Ill. 92, 44 N. E. R. 406; Rice v. Glass 348; Redmond v. Smock, 28 Ind. 365; Co., 88 Ill. App. 407. See also Ar- Pittsburgh, etc. R. Co. v. Heck, 50 nold v. Carpenter, 16 R. I. 560, 18 Atl. Ind. 303; Fell v. Muller, 78 Ind. 507; R. 174; Rosenbaum v. Weeden, 18 Dwiggins v. Clark, 94 Ind. 49; Shipps Gratt. (Va.) 785, 98 Am. Dec. 737. v. Atkinson, 8 Ind. App. 505, 36 N. E.
2 See Waples v. Overaker, 77 Tex. R. 375; Browning v. Simons, 17 Ind. 7, 13 S. W. R. 527, 19 Am. St. R. 727 App. 45, 46 N. E R. 86). [but see Leonard v. Portier (Tex.), 15 4 Van Brocklen v. Smeallie, 140 N. S. W. R. 414); Magnes v. Sioux City Y. 70, 35 N. E. R. 415. Nursery Co. (1900), 14 Colo. App. 219,
price realized upon the resale the basis of his recovery against the buyer.
$ 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.
$ 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 wbatever 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 2 Wrigley v. Cornelius (1896), 162 S. R. 818; Holland v. Rea, 48 Mich. Ill. 92, 44 N. E. R. 406. 218, 12 N. W. R. 167; Green v. Ansley, 3 Holland v. Rea, 48 Mich. 218, 12 92 Ga. 647, 19 S. E. R. 53; Davis Sul. N. W. R. 167. phur Ore Co. v. Atlanta Guano Co. * Ingram v. Wackernagle, 83 Iowa, (1900), 109 Ga. 607, 34 S. E. R. 1011; 82, 48 N. W. R. 998. Leonard v. Portier (1890, Tex. App.). 5 See Pollen v. Le Roy, 30 N. Y. 549; 15 S. W. R. 414; Winslow v. Harri Rosenbaum v. Weeden, 18 Gratt. man Iron Co. (1897, Tenn. Ch.), 42 S. (Va.) 785, 98 Am. Dec. 737. W. R. 698.
6 See Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415.