haps maintain assumpsit for the goods sold until that credit has expired, may yet sue immediately for the breach of the special agreement, and recover as damages the whole value of the goods, less, perhaps, the interest for the stipulated period.1

§ 1665. Actual delivery and acceptance necessary to sustain count for goods sold and delivered. In order that there may be a recovery of the price in the form now under consideration, i. e., on the count for goods sold and delivered, it is indispensable, according to a very recent case, that there be an actual delivery and acceptance of the goods free from the operation of the seller's lien. A mere tender will not suffice. "The plaintiff must prove not only such a delivery as will vest the property in the goods in the defendant, but such a delivery as will divest himself of all lien upon the goods, and enable the defendant to maintain trover for them without paying or offering to pay for them."

§ 1666. Actions for deceit. Instead of suing for the price. as discussed in the preceding sections, and instead of rescinding the sale for fraud often, indeed, because rescission is not feasible or possible,- the seller may in many cases maintain an action of tort against the buyer for fraudulent practices in inducing the sale. What the elements are which must be present to constitute fraud and which will sustain an action for deceit has been discussed in an earlier chapter, and need not

1 Hanna v. Mills (1893), 21 Wend. (N. Y.) 90, 34 Am. Dec. 216; Foster v. Adams (1888), 60 Vt. 392, 15 Atl. R. 169, 6 Am. St. R. 120; Young v. Dalton (1892), 83 Tex. 497, 18 S. W. R. 819 [citing Hanna v. Mills, supra; Hays v. Weatherman, 14 Ind. 341; Rinehart v. Olwine, 5 Watts & Serg. 162]; Morgan v. Turner (1893), 4 Tex. App. 192, 23 S. W. R. 284 [citing also Clodfelter v. Hulett, 72 Ind. 148; Carnahan v. Hughes, 108 Ind. 225, 9 N. E. R. 79]: Osborne & Co. v. Bell (1886), 62 Mich. 214, 28 N. W. R. 841.

See also Kokomo Strawboard Co. v.
Inman (1892), 134 N. Y. 92, 31 N. E.
R. 248.

2 Greenleaf v. Gallagher (1900), 93 Me. 549, 45 Atl. R. 829, 74 Am. St. R. 371 [citing Atwood v. Lucas, 53 Me. 508; Tufts v. Grewer, 83 Me. 407, 22 Atl. R. 382; Moody v. Brown, 34 Me. 107; Edwards v. Railroad Co., 54 Me. 105; Means v. Williamson, 37 Me. 556; Pettengill v. Merrill, 47 Me. 109; Gooch v. Holmes, 41 Me. 523, explaining Merrill v. Parker, 24 Me. 89].

See ante, §§ 866 et seq., 886 et seq.

be repeated here. It will suffice to say that, where those elements are present, the defrauded seller may maintain his action in tort for the deceit, and recover damages for the injury so inflicted.1

2. Where the Goods have not been Delivered.

§ 1667. Title passing, though goods not delivered.— As has been already seen, the title may pass at once, though the goods are not to be delivered until a later time. On the transfer of the title an obligation to pay the price will at once arise, though that payment may not be due until the delivery of the goods. Such delivery, moreover, may be postponed for a variety of reasons.

Among the causes which may thus operate to leave the goods in the custody of the seller, the most important perhaps are these: 1. Because, though the title has passed, the seller has yet to do something to the goods to fit them for delivery. 2. Because, though the title has passed, the goods remain in the possession of the seller as bailee for the buyer. 3. Because, though the title has passed, the seller retains possession by virtue of his vendor's lien. 4. Because, though the title has passed and the vendee ought to take the goods and pay for them, he refuses to do so or repudiates the contract.

§ 1668. Recovery of price where seller yet to do something to the goods.- In the first of these cases the obligation to pay would doubtless arise upon the transfer of the title, though the payment, in the absence of an express stipulation, would usually not be regarded as due until the thing to be done by the seller was performed. Circumstances, however, might clearly show that payment was to be due at once, though the act to be done was to be performed later; and express stipulations to that effect would, of course, be entirely competent. If so made due, the seller, upon default of payment by the purchaser, may maintain an action for the price as for goods bargained and sold.

1 See People v. Healy (1889), 128 Ill. 9, 20 N. E. R. 692, 15 Am. St. R. 90.

§ 1669. Recovery of price where seller holds as bailee for buyer. Cases of the second class would involve somewhat different considerations. If the title has passed, but the seller retains possession as bailee for the buyer, an obligation to pay would arise upon the transfer of the title, and, in the absence of agreement otherwise, payment would doubtless be deemed due at the time of the constructive delivery to the buyer and the assumption of the new attitude by the seller. Action might therefore be maintained for its recovery.1

The seller, clearly, by virtue of his lien might insist upon payment before he surrendered the goods.

§ 1670. Recovery of price where seller claims his lien.In the third case, where the seller is in possession by virtue of his lien, still different considerations arise. If a credit has been given which has not yet expired, no action can, of course, be maintained until that credit has expired. If no such credit were given, or if given had expired, an obligation to make immediate payment will arise, and the seller, though still in possession by virtue of his lien, may at once recover the price in an action for goods bargained and sold. As stated in a recent case, "there may be a bargain and sale of goods sufficient to transfer the title, and thus to support an action for goods bargained and sold, without any such delivery as will amount to a transfer of possession. The former is quite consistent with the vendor's retaining a lien for the price, and thus retaining possession until the price is paid." 2

3

§ 1671. ―. The same rule is stated in another case as follows: "Under a contract of sale, when the goods have been so

1 Armstrong v. Turner (1878), 49 38; Simmons v. Swift, 5 B. & Cr. Md. 589.

2 Frazier v. Simmons (1885), 139 Mass. 531, 2 N. E. R. 112 [citing Morse v. Sherman, 106 Mass. 430, 432; Haskins v. Warren, 115 Mass. 514, 533; Safford v. McDonough, 120 Mass. 290; Arnold v. Delano, 4 Cush. (Mass.) 33,

857; 2 Kent's Com. 492].

3 Mitchell v. Le Clair (1896), 165 Mass. 308, 43 N. E. R. 117 [citing Morse v. Sherman, 106 Mass. 430; Putnam v. Glidden, 159 Mass. 47, 34 N. E. R. 81, 38 Am. St. R. 394; White v. Solomon, 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537].

appropriated and set apart [as to complete the sale and pass the title], the vendor has done that which by the terms of the agreement makes the whole consideration payable; and so long as he remains ready to do whatever else is to be done to give the vendee the benefit of his purchase, he is entitled to receive the agreed price without reduction on account of his retention of his lien upon the property."

§ 1672. Recovery of price where seller stops goods in transit. For like reasons the seller may recover the price although he may have exercised his right to stop the goods in transit. The exercise of this right, as has been seen,' does not rescind the sale, but simply restores the seller to his possession and his lien. Neither does the insolvency of the buyer operate to rescind the sale. The seller may, as has been seen, pursue his remedy of resale; but he is not obliged to do so. He may, in the language of Kent," "sue for and recover the price, notwithstanding he has actually stopped the goods in transitu, provided he be ready to deliver them upon payment."

If the vendee has already paid part of the price, he cannot recover it because of such stoppage, though he is, of course, entitled to the benefit of it as an extinguishment pro tanto of the price.*

§ 1673. Recovery of residue of price after resale in pursuance of lien.- And so the seller who, in pursuance of his lien, has rightfully resold the goods may, as has been seen, recover of the buyer the residue due upon the price. But this, of course, presupposes that the seller's resale has been due and regular, for it is clear that a wrongful resale of the goods will defeat the seller's claim to the price.

§ 1674. Recovery of price where buyer fails or refuses to take the goods.-The fourth case also is unlike the others. If the title has passed, and the seller has done all that is re

1 Ante, § 1523.

2 Ante, § 1621 et seq.

32 Kent's Com. 541; Newhall v.

4 Newhall v. Vargas, supra.

5 See ante, § 1643.

6 Bowser v. Birdsell (1882), 49 Mich.

Vargas (1839), 15 Me. 314, 33 Am. Dec. 5, 12 N. W. R. 888.

617.

3

quired to be done upon his part — has taken the goods to the specified place, if any,' or tendered them when tender is required, or, as in the usual case where no such active performance is required, stands ready and willing to surrender the goods upon performance by the buyer, and the buyer fails or refuses to take the goods and pay the price, an action as for goods bargained and sold may be maintained. An actual change of possession is not essential to sustain an action for goods bargained and sold if the title has been transferred."

§ 1675. In accordance with this rule, though the contract were at first executory-as where the specific goods were not then ascertained,- still, unless repudiated before the time for performance has arrived, the seller, who has so appropriated the goods to the contract as to pass the title to them in accordance with the rules laid down in a preceding chapter," may recover the price as for goods bargained and sold."

1 Schneider v. Oregon Pac. R. Co. (1890), 20 Oreg. 172, 25 Pac. R. 391.

2 See ante, § 1130.

ery as will pass the title and vest the property in the purchaser. McCormick Harv. Mach. Co. v. Balfany

3 Middlesex Co. v. Osgood (1855), 4 (1899), 78 Minn. 370, 31 N. W. R. 10. Gray (Mass.), 447.

4 Scott v. England (1844), 2 Dowl. & L. 520; Morse v. Sherman (1871), 106 Mass. 430; Doremus v. Howard (1852), 23 N. J. L. 390; Lassing v. James (1895), 107 Cal. 348, 40 Pac. R. 534; Wood v. Michaud (1896), 63 Minn. 478, 65 N. W. R. 963; Unexcelled Fireworks Co. v. Polites (1890), 130 Pa. St. 536, 18 Atl. R. 1058, 17 Am. St. R. 788; Guillon v. Earnshaw (1895), 169 Pa. St. 463, 32 Atl. R. 545.

3" All that is necessary to enable a party to maintain an action for goods bargained and sold is that the property in the specific goods should have passed." Scott v. England, supra.

But in order that an action for the price shall be maintained it is indispensable that there shall have been such an actual or constructive deliv

Ante, § 694 et seq.

7 Mitchell v. Le Clair (1896), 165 Mass. 308, 43 N. E. R. 117, where it is said: "Under a contract of sale, when the goods have been so appropriated and set aside, the vendor has done that which by the terms of the agreement makes the whole consideration payable; and so long as he remains ready to do whatever else is to be done to give the vendee the benefit of his purchase, he is entitled to receive the agreed price without deduction on account of his retention of his lien upon the property." Citing Morse v. Sherman, 106 Mass. 430; Putnam v. Glidden, 159 Mass. 47, 34 N. E. R. 81; White v. Solomon, 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537.