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down. A particular place is not to be insisted upon, but good faith, and a fair and reasonable endeavor to get the best available price for the goods, are essential. The place at which the buyer was to receive the goods is not necessarily the best place for the resale; neither is the nearest market or even a market within the State? necessarily the most appropriate. Regard must be had for the character of the goods and the times, circumstances and places that regulate and control their price.

$ 1639. — “If the place of delivery affords no market for the article sold,” it is said in one case, “it is the duty of the vendor to send the goods to the nearest and most available market, and there dispose of them in such a way as to produce the largest possible results;” and if this requirement of the “nearest and most available market ”be qualified, as it undoubtedly must be, by reference to the character, situation and circumstances of the goods, it presents the rule which should apply. If there are two or more markets thus available, the seller's choice of any one, if made in good faith, cannot be complained of; and, in any event, a reasonable discretion as to the place of sale must be accorded to the seller.

§ 1640. The manner of resale.- Neither is any particular manner or method of making the resale necessary. “The resale may be made at public auction or privately, and it often happens that the goods can be best sold at private sale; but, whether in the one mode or the other, in the absence of any instructions from the buyer, the vendor has the right to exer

1 See Lewis v. Greider, 51 N. Y. 231; But such a course can only be sancIngram v. Wackernagle, 83 Iowa, 82, tioned where the distant market 48 N. W. R. 998; Anderson v. Frank, really affords the best and most ap45 Mo. App. 482.

propriate means of ascertaining the 2 See Anderson v. Frank, supra; In- value. An unnecessary and arbitrary gram v. Wacknernagle, supra; Saw- removal of the goods to some distant yer v. Dean, 114 N. Y. 469, 21 N. E. R. place for sale will not be tolerated. 1012. In these cases, the right of the Chapman v. Ingram, 30 - Wis 290; seller to resort to the great markets Rickey v. Tenbroeck, 63 Mo. 563. See for the kind of goods in question, also Guillon v. Earnshaw, 169 Pa. St. e. g., St. Louis and Chicago, was up- 463, 32 Atl. R. 545. held.

3 Anderson v. Frank, supra.

cise his discretion within reasonable bounds; and whether this discretion is exercised properly and in good faith are questions of fact for the jury.” 1

§ 1641. If

usage or the course of trade has established a particular method or medium of sale, as, for example, through the negotiation of brokers, the seller may and usually should adopt such customary means.?

$ 1642. Time of resale.- In selecting the date of the resale, the seller is charged with the duty of reasonable prudence

1 Penn v. Smith, 98 Ala. 560, 12 S. R. they are offered be at public auction, 818; Whitney v. Boardman, 118 Mass. he ought unquestionably to dispose of 242. Sale need not be by auction. them in that manner. If, however, Hayes v. Nashville (1897), 80 Fed. R. large dealers in the article in ques641, 26 C. C. A. 59, 47 U. S. App. 713. tion never send such goods to auc

As stated in Rosenbaum v. Weeden, tion, and they will sell to more ad18 Gratt. (Va.) 785, 98 Am. Dec. 737, vantage through a broker, it is “generally, he ought to sell them at equally his duty to offer them in the auction, because generally they will market through a broker's agency.'” sell to most advantage in that way. 2 Pollen v. Le Roy, 30 N. Y. 549. In But he need not always sell them in Brownlee v. Bolton, 44 Mich. 218, 6 that way, and it would be improper N. W. R. 657, it is said “that the for him to do so if it happened that vendor's right of resale must be exthey would sell to greater advantage ercised in good faith, and in such in some other way. Crooks v. Moore, time and manner, and under such 1 Sandf. (N. Y.) 297, is an important circumstances, and by such methods, case on this subject and the rea- as will be best calculated to produce sons assigned by the court are very the fair value of the property; and strong. The resale in that case was that in case he seeks to avail him. of iron, and it was a private one, self of it before a jury it is incummade through a broker in metals. bent on him to adduce the necessary It was contended that it should have facts to show that in exercising the been made at auction. “As to this right this manner was observed." In point,' the court said, 'we are not Bagley v. Findlay, 82 III. 524, it is aware that there is any rule of law said that “the vendor takes the powhich requires resales to be made at sition of agent for the vendee (see auction, and in no other mode. We ante, & 1629), and is held to the same believe the more sensible rule to be, degree of care, judgment and fidelity that the seller must dispose of the that is imposed by the law upon an goods in good faith, in the mode best agent put in the custody of such calculated to produce their value. goods in such condition with instrucIf the usual mode of selling the par- tions to sell them to the best advan. ticular goods in the market where tage."


and good judgment. He is not obliged to proceed within the shortest possible or even within the shortest reasonable time. “If made within a reasonable time," it has been said, "that is all that can be required, and the sale cannot be invalidated by showing that it might have been made sooner than it was.” In other cases, “due diligence” has been adopted as the standard.

$ 1643. Effect of resale in determining value.— The effect of a resale, properly made, - speaking still of the case in which the title has passed, and the seller is reselling the buyer's goods under the power of resale,- is that the amount realized upon such resale, less the reasonable expenses of making it,' indicates the amount to be credited to the buyer upon the purchase price and determines the balance for which he remains liable to the seller.*

1 Smith v. Pettee, 70 N. Y. 13; Pick- think it was plaintiff's right — perering v. Bardwell, 21 Wis. 562. haps its duty - to sell them forth

If the seller delay for what ap- with, and in this manner reduce its pears to be an unreasonable period damages. Hill v. McKay, 94 Cal. 5, without explanation, the price real- 29 Pac. R. 406.” Tustin Fruit Ass'n ized on the resale will not be con- v. Earl Fruit Co. (1898), 121 Cal. xviii, clusive. Camp v. Hamlin, 55 Ga. 53 Pac. R. 693. 259. An unexplained delay of fifteen 2 Smith v. Pettee, supra. months was held too long in Picker- 3 But not, it seems, the personal exing v. Bardwell, supra. On the other penses of the seller in coming to the hand, two months' delay ou a falling place of sale. Penn v. Smith, 93 Ala. market was held not unreasonable in 476, 9 S. R. 609. Rosenbaum v. Weeden, supra.

4 Sands v. Taylor, 5 Johns (N. Y.) In Smith v. Pettee, supra, it is said 395, 4 Am. Dec. 374; Pollen v. Le Roy, that the sellers would doubtless be 30 N. Y. 549; Smith v. Pettee, 70 N. Y. bound to obey any instructions 13; Dustan v. McAndrew, 44 N. Y. 72; which the buyers might give them Sawyer v. Dean, 114 N. Y. 469, 21 N. as to the time and manner of sale, E. R. 1012; Lewis v. Greider, 51 N. Y. and which they could follow with. 231; Rice v. Manley, 66 N. Y. 82; Van out sacrificing their lien for the Brocklen v. Smeallie, 140 N. Y. 70, 35 price; but in the absence of any such N. E. R. 415: Young v. Mertens, 27 instructions they have the right to Md. 114; Atwood v. Lucas, 53 Me. 508, exercise their discretion within rea- 89 Am. Dec. 713; Van Horn v. Rucker, sonable bounds.

33 Mo. 391; Anderson v. Frank, 45 Where the goods were perishable, Mo. App. 482; Bagley v. Findlay, 83 the court in California said: “We Ill. 524; Roebling's Sons Co. v. Fence

This result is based upon the ground that the seller has sold the buyer's goods by virtue of an authority conferred upon him by the law, and that the sale is, in legal effect, the act of the buyer, entailing upon him the same consequences as though he had sold the goods himself and applied the proceeds upon

the purchase price.

$ 1644. Title of the purchaser at the resale.- The title which the purchaser at the resale can acquire must depend upon the existence of the vendor's right to make it and upon the regularity of the proceeding. Mr. Benjamin has stated the rule to be that, “where there has been a resale, the title of the second purchaser depends on the fact whether the first buyer was in default, for if not he may maintain trover." This

Co., 130 IIl. 660, 22 N. E. R. 518; Mor- can find another more in accordance ris v. Wibaux, 159 Ill. 627, 43 N. E. R. with the justice of the case. And 837; Wrigley v. Cornelius, 162 Ill. 92, this appears to be the same kind of 44 N. E. R. 406; Whitney v. Board- direction which was given in the case man, 118 Mass. 242: Ingram v. Wack- of Andrews v. Hoover, 8 Watts, 239, ernagle, 83 Iowa, 82, 48 N. W. R. 998; and approved by this court; and also Phelps v. Hubbard, 51 Vt. 489; Haines in Girard v. Taggart, 5 Serg. & R. 19. V. Tucker, 50 N. H. 307; Woods v. A resale is a usual mode to ascertain Cramer, 34 S. C. 508, 13 S. E. R. 660; the difference between the contract Cook v. Brandeis, 3 Metc. (Ky.) 555; price and the value of the article, Bell v. Offutt, 10 Bush (Ky.), 632; Mc. when the vendee refuses to accept Cord v. Laidley, 87 Ga. 221, 13 S. E. it. But it is not the only mode, nor R. 509.

even when it takes place is it decisIn Pennsylvania the resale seems ive. The jury may as was the case to be only one method of determin- here, have evidence of other kinds ing the value, and its results not to show the value, and are to judge necessarily conclusive. Thus in Mc- in the best manner they can from Combs v. McKennan, 2 W. & Serg. the whole case. The law lays down 216, in speaking of the assignments no one mode as the exclusive one for of error, the court said: “ The fifth settling the value of an article in error (assigned) is in stating that the market, at or about a given time; it measure of damages would be the is a matter to be left to the jury on difference between the contract price the evidence, and that seems to be of seed and the price it subsequently the principle of the cases. To like sold for. To this, however, the court effect, see West v. Cunningham, 9 added, provided that sale was made Port. (Ala.) 104, 33 Am. Dec. 300. bona fide and to the best advantage Benjamin on Sale (6th Am. ed.), of all concerned, and that the jury 795. are not bound by this rule if they


language was construed by the court in Rhode Island as “eri. dently implying that, if the first buyer be in default, the purchaser at the second sale acquires a good title, or at least inmunity from suit in trover or replevin."! The court also

1 quoted with approval the statement of Mr. Schouler, that "the buyer's default, followed by the seller's resale, seems to constitute a rescission of the contract in such a sense that the buyer is not permitted to follow the goods into the new purchaser's hands and reclaim them as his own, but must look to his own adjustment of damages with the seller for indemnity, if indemnity be his due.”

This fiction of rescission seems contrary to the fact, and no reason is apparent why the ordinary rules applicable to one who purchases at a sale in invitum held by authority of law should not apply.

2. Right of Resale on Executory Contract. $ 1645. General considerations.— The right of resale which has thus far been considered is that which attaches for the protection of the seller when the title to the goods has passed to the vendee, and it is to this class of cases alone that the right, strictly speaking, belongs. Such a right, however, is constantly asserted in cases in which the title to the goods has not passed, and the instances are numerous in which all of the optional remedies of the seller, heretofore alluded to, are declared to exist in this class of cases also. The two classes of cases, nevertheless, are clearly distinguishable, as will be obrious from a moment's consideration. The right of resale is primarily a remedy for enforcing the seller's lien, but the seller in the cases now under consideration can have no lien to enforce. The title to the goods is still in him, and no man can have a lien upon his own property. The seller cannot sell the goods as agent for the buyer for the same reason that the buyer is not the owner and therefore cannot authorize the sale.

1 Arnold v. Carpenter (1889), 16 R. L 22 Schouler on Pers Prop, $ 547. 560, 18 Atl. R. 174.

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