§ 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 which 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.

§ 1656. Seller may rescind for fraud. The seller may, of course, in many cases, if he has not waived his right, rescind the sale and recover his goods where the sale was brought about by fraud or deceit. That question has, however, been fully considered in a previous chapter,1 and need not be repeated here.

§ 1657. Seller may reserve lien by contract.-So, also, the seller may by contract have reserved a lien which will secure the price notwithstanding the transfer of the title and the delivery of the goods; but the subject of contract liens is beyond the range of the present work, and must be found considered in treatises upon the law of liens and chattel mortgages, like the excellent books of Mr. Jones."

Confining ourselves, then, to rights of action merely, it may be noticed first that

§ 1658. Seller may recover price as for goods sold and delivered. The simplest and most common case of all is the case in which the title has passed and the goods sold have, either actually or in contemplation of law, been delivered to the buyer. Here nothing remains to be done except the payment of the price, which is due either upon the delivery of the goods or at the expiration of the term of credit, if any; and, upon default in payment, the seller may sue the buyer for the price, as for goods sold and delivered.'

§ 1659. When credit given.- In such a case, as has been seen, if credit has been given but no lien has been retained, and there is no warrant for the rescission of the sale, the seller's only remedy is this personal action against the buyer; and the measure of his recovery will be the price agreed upon, with interest from default. If no price has been agreed upon,

1 See ante, § 886 et seq.

2 See ante, § 577.

3 See Jones on Chattel Mortgages (4th ed.); Jones on Liens.

See Chitty on Pleading (16th Am. ed.), p. 356.

then the fair value the reasonable value-measured by the market price, if any, will be the basis of recovery.1

§ 1660. When no credit given.-If, however, no credit were agreed upon, then, as has been seen, delivery and payment are presumed to be coincident; the delivery in such a case is in law deemed to be conditioned upon immediate payment, and if the buyer, having obtained possession of the goods, refuses to pay for them, in violation of this condition, the seller may either recover his goods, or, waiving this right, may sue at once for the price.3

§ 1661. When payment of the price is due - On delivery. The general question, when the payment of the price is due, has already been considered in an earlier chapter, and the discussion need not be repeated here. It will suffice to recall what has been frequently observed, that, where no term of credit has been agreed upon, it is presumed that delivery and payment are to be concurrent acts, and the payment is therefore due at the time of the delivery of the goods at least.5

1 See ante, § 207; Livingston v. Wagner (1895), 23 Nev. 53, 42 Pac. R. 290; Comstock v. Sanger (1883), 51 Mich. 497, 16 N. W. R. 872; Lovejoy v. Michels (1891), 88 Mich. 15, 49 N. W. R. 901, 13 L. R. A. 770; Greene v. Lewis (1887), 85 Ala. 221, 4 S. R. 740, 7 Am. St. R. 42; Shealy v. Edwards (1882), 73 Ala. 175, 49 Am. R. 43; McEwen v. Morey (1871), 60 Ill. 32. 2 See ante, § 554.

3 See ante, § 549.

Recovery from sub-vendee.Where personal property is sold for cash on delivery, the sale is conditional, and the title will not vest in the purchaser until the terms of the sale are complied with; and though, as a general rule, a bill of lading is evidence of title to personal property, yet if it be obtained without the authority of the owner and seller

of the goods, or by fraud, it will not authorize a transfer which will defeat the title of the original owner. Evansville & Terre Haute R. Co. v. Erwin (1882), 84 Ind. 457. So where such a conditional vendee, without the knowledge or consent of the seller and without compliance with the terms of the sale, resells such property to a third person, who converts it to his own use, such third person acquires no title as against the original seller and is liable to him for its value, or for the balance due him from his vendee on the agreed price. Lanman v. McGregor (1883), 94 Ind. 301.

4 Ante, Book IV, ch. VIII, § 1404 et seq.

5 See ante, § 1407. Where the goods are to be delivered in instalments as called for, payment is due as each

-.

§ 1662. It may, however, become due before an actual delivery in many cases; because, as has been seen, unless the seller is bound to send or carry the goods to the buyer, readiness and willingness to deliver are all that is necessary to enable the seller to recover the price,' and where the seller is to deliver at a particular place, a delivery there entitles him to a recovery of the price without proof of an actual acceptance by the buyer. By express stipulation, moreover, payment may be due before the time for delivery has arrived or even before the transfer of the title. But as the present subdivision has to do with those cases only in which a delivery has taken place, nothing further need be considered here than the rule of payment upon delivery where no credit has been given and such payment has not been waived.

§ 1663. At expiration of term of credit.— Where, however, a term of credit has been given, then, as has been seen, payment is not due until the term of credit has expired. Even if fraud were present, the action for the price is not, as has been seen," to be accelerated by that fact, though the seller by rescinding the sale might recover his goods, or their value, in an action for their conversion.

§ 1664. How when bill or note was to be given for the price. But if the term of credit were given upon the condition that the buyer should give a note or other security for the price, and the buyer, upon demand, refuses to give the note or security as agreed, the seller, while he may not per

instalment is delivered. Pineville Lumber Co. v. Thompson (1891), 46 Minn. 502, 49 N. W. R. 204.

1 See ante, § 1412.

2 Schneider v. Oregon Pac. R. Co. (1890), 20 Oreg. 172, 25 Pac. R. 391 [citing Nichols v. Morse, 100 Mass. 523; Pacific Iron Works v. Long Island R. Co., 62 N. Y. 272]. 3 See ante, § 1415.

4 See ante, § 1410, and cases cited;

Galloway v. Holmes (1844), 1 Doug. (Mich.) 330.

5 See ante, § 1411, and cases cited. One who receives credit for goods in consideration of his agreement to do certain things, which he fails to do, may be sued for the price of the goods as though no credit had been given. Wineman v. Walters (1884), 53 Mich. 470, 19 N. W. R. 150.