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. 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. 3 § 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; Ingram v. Wackernagle, 83 Iowa, 82, 48 N. W. R. 998; Anderson v. Frank, 45 Mo. App. 482. 2 See Anderson v. Frank, supra; Ingram v. Wacknernagle, supra; Sawyer v. Dean, 114 N. Y. 469, 21 N. E. R. 1012. In these cases, the right of the seller to resort to the great markets for the kind of goods in question, e. g., St. Louis and Chicago, was upheld. But such a course can only be sanc tioned where the distant market really affords the best and most appropriate means of ascertaining the value. An unnecessary and arbitrary removal of the goods to some distant place for sale will not be tolerated. Chapman v. Ingram, 30 Wis. 290; Rickey v. Tenbroeck, 63 Mo. 563. See also Guillon v. Earnshaw, 169 Pa. St. 463, 32 Atl. R. 545. 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.2 § 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. 818; Whitney v. Boardman, 118 Mass. 242. Sale need not be by auction. Hayes v. Nashville (1897), 80 Fed. R. 641, 26 C. C. A. 59, 47 U. S. App. 713. As stated in Rosenbaum v. Weeden, 18 Gratt. (Va.) 785, 98 Am. Dec. 737, "generally, he ought to sell them at auction, because generally they will sell to most advantage in that way. But he need not always sell them in that way, and it would be improper for him to do so if it happened that they would sell to greater advantage in some other way. Crooks v. Moore, 1 Sandf. (N. Y.) 297, is an important case on this subject and the reasons assigned by the court are very strong. The resale in that case was of iron, and it was a private one, made through a broker in metals. It was contended that it should have been made at auction. As to this point,' the court said, 'we are not aware that there is any rule of law which requires resales to be made at auction, and in no other mode. We believe the more sensible rule to be, that the seller must dispose of the goods in good faith, in the mode best calculated to produce their value. If the usual mode of selling the particular goods in the market where they are offered be at public auction, he ought unquestionably to dispose of them in that manner. If, however, large dealers in the article in question never send such goods to auction, and they will sell to more advantage through a broker, it is equally his duty to offer them in the market through a broker's agency.'" 2 Pollen v. Le Roy, 30 N. Y. 549. In Brownlee v. Bolton, 44 Mich. 218, 6 N. W. R. 657, it is said "that the vendor's right of resale must be exercised in good faith, and in such time and manner, and under such circumstances, and by such methods, as will be best calculated to produce the fair value of the property; and that in case he seeks to avail himself of it before a jury it is incumbent on him to adduce the necessary facts to show that in exercising the right this manner was observed." In Bagley v. Findlay, 82 Ill. 524, it is said that "the vendor takes the position of agent for the vendee [see ante, § 1629], and is held to the same degree of care, judgment and fidelity that is imposed by the law upon an agent put in the custody of such goods in such condition with instructions to sell them to the best advantage." 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.2 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 1 Smith v. Pettee, 70 N. Y. 13; Pickering v. Bardwell, 21 Wis. 562. If the seller delay for what appears to be an unreasonable period without explanation, the price realized on the resale will not be conclusive. Camp v. Hamlin, 55 Ga. 259. An unexplained delay of fifteen months was held too long in Pickering v. Bardwell, supra. On the other hand, two months' delay on a falling market was held not unreasonable in Rosenbaum v. Weeden, supra. In Smith v. Pettee, supra, it is said that the sellers would doubtless be bound to obey any instructions which the buyers might give them as to the time and manner of sale, and which they could follow without sacrificing their lien for the price; but in the absence of any such instructions they have the right to exercise their discretion within reasonable bounds. think it was plaintiff's right-perhaps its duty-to sell them forthwith, and in this manner reduce its damages. Hill v. McKay, 94 Cal. 5, 29 Pac. R. 406." Tustin Fruit Ass'n v. Earl Fruit Co. (1898), 121 Cal. xviii, 53 Pac. R. 693. 2 Smith v. Pettee, supra. 3 But not. it seems, the personal expenses of the seller in coming to the place of sale. Penn v. Smith, 93 Ala. 476, 9 S. R. 609. 4 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; Dustan v. McAndrew, 44 N. Y. 72; Sawyer v. Dean, 114 N. Y. 469, 21 N. E. R. 1012; Lewis v. Greider, 51 N. Y. 231; Rice v. Manley, 66 N. Y. 82; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. R. 415: Young v. Mertens, 27 Md. 114; Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713; Van Horn v. Rucker, 33 Mo. 391: Anderson v. Frank, 45 Mo. App. 482; Bagley v. Findlay, 83 Ill. 524; Roebling's Sons Co. v. Fence Where the goods were perishable, the court in California said: "We |
