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 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; Whitney v. Boardman, 118 Mass. 242; Ingram v. Wackernagle, 83 Iowa, 82, 48 N. W. R. 998; Phelps v. Hubbard, 51 Vt. 489; Haines v. Tucker, 50 N. H. 307; Woods v. Cramer, 34 S. C. 508, 13 S. E. R. 660; Cook v. Brandeis, 3 Metc. (Ky.) 555; Bell v. Offutt, 10 Bush (Ky.), 632; McCord v. Laidley, 87 Ga. 221, 13 S. E. R. 509.

In Pennsylvania the resale seems to be only one method of determining the value, and its results not necessarily conclusive. Thus in McCombs v. McKennan, 2 W. & Serg. 216, in speaking of the assignments of error, the court said: "The fifth error [assigned] is in stating that the measure of damages would be the difference between the contract price of seed and the price it subsequently sold for. To this, however, the court added, provided that sale was made bona fide and to the best advantage of all concerned, and that the jury are not bound by this rule if they

can find another more in accordance with the justice of the case. And this appears to be the same kind of direction which was given in the case of Andrews v. Hoover, 8 Watts, 239, and approved by this court; and also in Girard v. Taggart, 5 Serg. & R. 19. A resale is a usual mode to ascertain the difference between the contract price and the value of the article, when the vendee refuses to accept it. But it is not the only mode, nor even when it takes place is it decisive. The jury may as was the case here, have evidence of other kinds to show the value, and are to judge in the best manner they can from the whole case. The law lays down no one mode as the exclusive one for settling the value of an article in market, at or about a given time; it is a matter to be left to the jury on the evidence, and that seems to be the principle of the cases. To like effect, see West v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300.

1 Benjamin on Sale (6th Am. ed.), 795.

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

The seller, moreover, can have no option of treating the goods as his own, because, ex hypothesi, they are and have been always his property.

§ 1646.. There are, of course, cases in which, though the title may not have passed at the time of the threatened default of the buyer, the seller may still so far proceed with performance on his own part as to vest the title in law in the buyer, and may then have for his protection all the remedies which exist in any case in which the title has been transferred. But such are not the cases now referred to, but simply those in which it is apparent that, at no stage in the negotiations, has the title passed into the buyer.

§ 1647. Choice of remedies.-If an attempt were to be made to compare the several remedies open to the choice of the seller in the case of the executory contract, the following would be the result: (1) If the nature of the case will admit of it, the seller may proceed to so far complete the performance on his own part as to transfer the title to the buyer, and may then avail himself of all of the remedies, either against the goods or against the buyer personally, which are appropriate to such a case. (2) He may treat the contract as broken by the buyer, before the passing of the title, and, keeping the goods, may sue the buyer for damages for the latter's breach of contract. (3) He may treat the contract as broken, as in the last instance, and may proceed to sell the goods for the purpose of ascertaining the damages to be sued for those damages being, as will be seen hereafter, ordinarily the difference between what the buyer was to pay for them and what they can be sold for in the market. (4) In some cases he may treat the contract as rescinded and proceed upon that basis.

§ 1648. Of these four remedies, the only one to be considered in this subdivision of this chapter as a remedy against the goods is obviously the third, and the third is just as obviously only an incident to the second, which is a remedy

against the buyer personally a class of remedies to be considered in the following chapter.

§ 1649. Nature of right of resale.-The remedy of the seller, where the title has not passed, being thus primarily a personal one for the recovery of damages, and those damages being, as already stated, ordinarily the difference between the contract price and the market value of the goods, it becomes material to show what that market value is. Two methods of proving this value are available to the plaintiff: (1) He may call witnesses, familiar with the market, to testify what the market value of the goods in question was at the time and place in issue, i. e., what, in their opinion, the goods would have sold for, if they had been put upon the market. (2) He may himself proceed to sell the goods in the market, and may then show what, in fact, they did sell for.

The purpose of this sale by the vendor is to make evidence for himself of a matter of fact, rather than to rely upon what must otherwise be somewhat a matter of conjecture or opinion.

1650. How resale should be made.-The seller, in these cases, is not bound to resell, in order to ascertain the value: he may either resell or rely upon other evidence of value, at his option. If he does resell, he must, in order to have the result available as evidence of value, pursue, in substance, the same course as that required of a vendor who sells to enforce his lien; that is, as stated in foregoing sections, he must sell in good faith, within a reasonable time, after notice 1 in the customary manner, and at the place of delivery, or, if there be no market there, then in the nearest and most available market.

1 That notice of the intention to resell is necessary, even on the executory contract, in order to make the price so obtained the basis of recovery, see Davis Sulphur Ore Co. v. Atlanta Guano Co. (1900), 109 Ga. 607, 34 S. E. R. 1011, and cases cited. That

the seller must proceed with “due diligence," see Gehl v. Milwaukee Produce Co. (1900), 105 Wis. 573, 81 N. W. R. 666. See also Tripp v. Forsaith Mach. Co. (1897), 69 N. H. 233, 45 Atl. R. 746.