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$ 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.'

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

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$ 1671. The same rule is stated in another case 3 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.

857; 2 Kent's Com. 492). 2 Frazier V. Simmons (1885), 139 3 Mitchell v. Le Clair (1896), 165 Mass. 531, 2 N. E. R. 112 [citing Morse Mass. 308, 43 N. E. R. 117 [citing v. Sherman, 106 Mass. 430, 432; Has Morse v. Sherman, 106 Mass. 430; kins v. Warren, 115 Mass. 514, 533; Putnam v. Glidden, 159 Mass. 47, 34 Safford v. McDonough, 120 Mass. 290; N. E. R. 81, 38 Am. St. R. 394; White Arnold v. Delano, 4 Cush. (Mass.) 33, v. Solomon, 164 Mass. 516, 42 N. E. R.

104, 30 L. R. A. 537].

3 66

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 re1 Ante, S 1523.

4 Newhall v. Vargas, supra. ? Ante, $ 1621 et seq.

5 See ante, $ 1643. 3 2 Kent's Com. 541; Newhall v. 6 Bowser v. Birdsell (1882), 49 Mich. Vargas (1939), 15 Me. 314, 33 Am. Dec. 5, 12 N. W. R. 888. 617.

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.5

$ 1675. — In accordance with this rule, though the con

tract 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.?

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1 Schneider v. Oregon Pac. R. Co. ery as will pass the title and vest the (1890), 20 Oreg. 172, 25 Pac. R. 391. property in the purchaser. McCor2 See ante, S 1130.

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

6 Ante, S 694 et seq. 4 Scott v. England (1844), 2 Dowl. 7 Mitchell v. Le Clair (1896), 165 & L. 520; Morse v. Sherman (1871), Mass. 308, 43 N. E. R. 117, where it is 106 Mass. 430; Doremus v. Howard said: “Under a contract of sale, when (1852), 23 N. J. L. 390; Lassing v. the goods have been so appropriated James (1895), 107 Cal. 348, 40 Pac. R. and set aside, the vendor has done 534; Wood v. Michaud (1896), 63 Minn, that which by the terms of the agree478, 65 N. W. R. 963; Unexcelled Fire- ment makes the whole consideration works Co. v. Polites (1890), 130 Pa. payable; and so long as he remains St. 536, 18 Atl. R. 1058, 17 Am. St. R. ready to do whatever else is to be 788; Guillon v. Earnshaw (1895), 169 done to give the vendee the benefit Pa. St. 463, 32 Atl. R. 545.

of his purchase, he is entitled to re5"All that is necessary to enable a ceive the agreed price without departy to maintain an action for goods duction on account of his retention bargained and sold is that the prop- of his lien upon the property.” Citerty in the specific goods should have ing Morse v. Sherman, 106 Mass. 430; passed.” Scott v. England, supra. Putnam v. Glidden, 159 Mass. 47, 34

But in order that an action for the N. E. R. 81; White v. Solomon, 164 price shall be maintained it is indis- Mass. 516, 42 N. E. R. 104, 30 L. R. A. pensable that there shall have been 537. such an actual or constructive deliv

$ 1676. — For like reasons, upon an executory contract to manufacture, grow or otherwise produce or procure goods, not repudiated before performance is due, the seller, upon so manufacturing or producing the goods as to pass the title to them within the rules previously laid down,' may recover the price as for goods bargained and sold.?

$ 1677. Even though the seller, as will be seen in the following section, might have the right to resell the goods, he is not obliged to do so: that remedy is optional, and if the seller prefers to sue for the price, he has an undoubted right to so proceed.

$ 1678. Other remedies in such cases. The remedy by action for the price is, however, not the only one of which the seller may avail himself in such a case. As has been seen, it is often said that the seller has his choice of three. To repeat what has so frequently been quoted, these are said to be the remedies of the seller:

“(1) He may store or retain the property for the vendee, and sue him for the entire purchase price.

“(2) Ie may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or,

“(3) He may keep the property as his own, and recorer the difference between the market price at the time and place of delivery and the contract price.”5

$ 1679. This grouping of remedies, however, can scarcely be said to be accurate, either in the case of the exe

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ages, 262.

1 See ante, S 754 et seq.

3 Lassing v. James (1895), 107 Cal. 2 See the cases cited in the sections 348, 40 Pac R. 534 [citing Hunter v. last referred to, especially Shawhan Wetsell, 84 N. Y. 549, 38 Am. R. 544; v. Van Nest (1874), 25 Ohio St. 490, 18 Dustan v. McAndrew, 44 N. Y. 72; Am. R. 313; Mechem's Cas. on Dam Van Horn v. Rucker, 35 Mo. 391, 84

See also Black River Am. Dec. 52). Lumber Co. v. Warner (1887), 93 Mo. 4 See ante, & 1618. 374, 6 S. W. R. 210; McCormick Har. 6 Dustan v. McAndrew (1870), 44 vesting Mach. Co. v. Markert (1899), N. Y. 72, 78. 107 Iowa, 340, 78 N. W. R. 33.

cuted or the executory sale. It is true enough, as it has been the purpose to show thus far in the present chapter, that if the title has passed and the seller has done all that is incumbent upon him to do, he may recover the price as for goods bargained and sold at least, even though the vendee has never received the goods into his actual possession and refuses to do so. Under these circumstances, the first of the rules given may appropriately be applied.

$ 1680. Vendor may resell and recover deficiency.So, if the title has passed but the seller still has the goods in his possession, he may, by virtue of his vendor's lien, resell the goods as the goods of the buyer (though not necessarily as the buyer's agent?), and recover as damages the difference between the contract price and the price obtained on such resale.3

$ 1681. — Right to keep property as his own and recover deficiency.- But as to the third rule the right is not so clear. By the hypothesis, the title has passed to the buyer and the goods are his, though they may remain in the possession of the seller. By virtue of what authority or right, then, may the seller, upon the mere default of the buyer, rescind the sale, keep the property as his own, and then recover the difference between the market value and the agreed price? If the title has not passed, the difficulty disappears; but the title has passed. May the seller treat the repudiation of the contract by the buyer, not as a ground for a total repudiation by himself, but as sufficient reason for a repudiation in part — that is, for a repudiation of the transfer of the title but a retention of the contract as a means for recovering damages for its breach ? May the seller treat the rejection of the title by the buyer as

1 But if the seller elects to store the 2 See ante, S 1629. goods as the goods of the buyer and 3 See ante, S 1643; Hayes v. Nashthen sue for the price, he must exer- ville (1897), 47 U. S. App. 713, 26 C. C. cise his election and give notice of it A. 59, 80 Fed. R. 641; Sands v. Taylor to the buyer within a reasonable (1810), 5 Johns. (N. Y.) 395, 4 Am. Dec. time. Morris v. Cohn (1891), 55 Ark. 374. 401, 18 S. W. R. 384.

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