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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 (4) In some cases he may treat the contract as rescinded and proceed upon that basis.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.

$ 1619. 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 somewbat a matter of conjecture or opinion.

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§ 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 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.

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1 That notice of the intention to the seller must proceed with "due resell is necessary, even on the exec- diligence," see Gehl v. Milwaukee utory contract, in order to make Produce Co. (1900), 105 Wis 573, 81 the price so obtained the basis of re- N. W. R. 666. See also Tripp v. Forcovery, see Davis Sulphur Ore Co. v. saitb Mach. Co. (1897), 69 N. H. 233, Atlanta Guano Co. (1900), 109 Ga. 607, 45 Atl. R. 746. 34 S. E. R. 1011, and cases cited. That

CHAPTER III.

REMEDIES OF THE SELLER AGAINST THE BUYER PERSONALLY.

$ 1651. Purpose of this chapter. $ 1670, 1671. Recovery of price where 1652. What questions arise.

seller claims his lien. I. WHERE THE TITLE HAS PASSED.

1672. Recoveryof price where seller

stops goods in transit. 1653. In general.

1673. Recovery of residue of price 1. Where the Goods have been Deliv

after resale in pursuance ered.

of lien. 1654. Recovery of price the chief 1674–1677. Recovery of price where object.

buyer fails or refuses to 1655. Seller cannot rescind for mere

take the goods. non-payment of price. 1678, 1679. Other remedies in 1656. May rescind for fraud.

like cases. 1657. May reserve lien by con

1680. Vendor may resell and tract.

recover deficiency. 1658. Seller may recover price as for

1681, 1682.

Right to keep propgoods sold and delivered.

erty as his own and recover 1659. When credit given.

deficiency. 1660. When no credit given. IL. WHERE THE TITLE HAD NOT 1661, 1662. When payment of price

PASSED. is due - On delivery.

1683. In general 1663. At expiration of term of credit.

1. Where the Goods have been Delir 1664. How when bill or note

ered. was to be given for the 1684–1688. Recovery of goods and price.

damages for breach of con1665. Actual delivery and accept

tract. ance necessary to sustain

2. Where the Goods have not been Decount for goods sold and

livered delivered.

1689. Where title has not passed 1666. Actions for deceit.

and goods not delivered, ac2. Where the Goods have not been De

tion for damages is remedy. livered

1690. Measure of damages usually 1667. Title passing though goods

difference between connot delivered.

tract price and market 1668. Recovery of price where seller

price at time and place of yet to do something to the

delivery. goods.

1691. Time for delivery. 1669. Recovery of price where seller 1692. How market value holds as bailee for buyer.

shown - Resale.

$ 1693. Scope of evidence. $ 1702, 1703. Countermanding 1694, Full contract price after ten

order before manufacture der allowed in some cases.

begun. 1695. Contracts for sale of 1704. Loss of profits stocks.

1705. Form of repudiation. 1696. Contracts for manufact- 1706. Effect on seller's rights of ure of chattel.

repudiation by the buyer. 1697. Contracts for produc- 1707. Seller not obliged to tion of that which has no

treat it as a present breach. market value.

1708. Contract kept alive for 1698. This not the general rule.

the benefit of both par. 1699. Countermanding perform

ties. ance of executory contract. 1709-1712 Measure of dam. 1700. Countermanding order

ages if seller does treat it after part delivery.

as present breach. 1701. Countermanding order 1713. Treating contract as refor goods when partly man

scinded and recovering ufactured,

quantum valebat. $ 1651. Purpose of this chapter.- In the preceding chapter there has been consideration of the remedies of the unpaid seller against the goods. It is the purpose of this chapter to treat of the remedies which the seller has, not against the goods, but against the buyer personally. These personal remedies in this case, as in most other cases, are ordinarily the primary ones, while the remedies against the goods are usually concurrent or collateral only and exist for the purpose of securing and protecting the others. In dealing with the subject here, questions of mere pleading and practice will in general be omitted, as involving matters largely of local law, and the consideration will be confined to the general rules of law which govern the subject.

$ 1652. What questions arise. It will be obvious upon reflection that a variety of conditions may arise, the chief among which will perhaps be these: I. The title has passed, and

(1) The goods have been delivered, or

(2) The goods still remain in the possession of the seller. II. The title has not passed, and (1) The possession has been surrendered temporarily to

the buyer, or (2) The goods still remain in the custody of the seller.

There may also be involved questions of deceit or fraud and a consequent power of rescission. There may also be rights of recaption or rescission reserved by the special agreement of the parties.

The chief distinction suggested between the cases in which the title has or has not passed, as modified by the further consideration of the change of possession, seems, however, to be most appropriate to the present purpose and will be adopted in this chapter.

I. WHERE THE TITLE HAS PASSED. $ 1653. In general.- As suggested in the preceding section, a distinction may well be drawn between those cases in wbich the goods have been delivered and those in which the goods still remain in the custody of the seller. For the purposes of a lien, this is obviously important; it is equally so from the standpoint of a possible recaption or rescission; and from the standpoint of the form of action the distinction is represented in the well known difference in the common counts between the count for goods sold and delivered and the count for goods bargained and sold.

1. Where the Goods have been Delivered. § 1654. Recovery of price the chief object. If the title has passed and the goods have been delivered to the buyer, the seller's chief aim will, of course, be the recovery of the price, and the remedies which will coerce or secure payment will therefore be paramount. In this line it may be noticed first that -

$ 1655. The seller cannot rescind merely for non-payment of the price.- By the hypothesis, the title has passed and the goods have been delivered, and, unless he has expressly retained by contract some lien or option to rescind, his remedy lies in action only: he cannot rescind and recover his goods simply because the buyer does not pay when or as agreed.' 1 Kramer v. Messner (1897), 101 Iowa, 88, 69 N. W. R. 1142.

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