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§ 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.3

§ 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) He 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 recover 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

1 See ante, § 754 et seq.

2 See the cases cited in the sections last referred to, especially Shawhan v. Van Nest (1874), 25 Ohio St. 490, 18 Am. R. 313; Mechem's Cas. on Damages, 262. See also Black River Lumber Co. v. Warner (1887), 93 Mo. 374. 6 S. W. R. 210; McCormick Harvesting Mach. Co. v. Markert (1899), 107 Iowa, 340, 78 N. W. R. 33.

3 Lassing v. James (1895), 107 Cal. 348, 40 Pac. R. 534 [citing Hunter v. Wetsell, 84 N. Y. 549, 38 Am. R. 544; Dustan v. McAndrew, 44 N. Y. 72; Van Horn v. Rucker, 33 Mo. 391, 84 Am. Dec. 52].

4 See ante, § 1618.

5 Dustan v. McAndrew (1870), 44 N. Y. 72, 78.

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.1

§ 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 2), and recover as damages the difference between. the contract price and the price obtained on such resale.3

Right to keep property as his own and re

§ 1681. cover 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 goods as the goods of the buyer and then sue for the price, he must exercise his election and give notice of it to the buyer within a reasonable time. Morris v. Cohn (1891), 55 Ark. 401, 18 S. W. R. 384.

2 See ante, § 1629.

3 See ante, § 1643; Hayes v. Nashville (1897), 47 U. S. App. 713, 26 C. C. A. 59, 80 Fed. R. 641; Sands v. Taylor (1810), 5 Johns. (N. Y.) 395, 4 Am. Dec. 374.

a ground for revesting it in himself and then proceed as thougk the contract were executory?

1

§ 1682. Neither one of these things seems to be consistent with legal principles, but that something of this sort may occur seems constantly to be asserted by the courts; and it is said to be the general rule in this country that "the seller upon the buyer's defaul whether the latter is insolvent or not, and whether his conduct is such as to show a settled determination to repudiate the contract or not, may, although title has passed to the buyer, elect to keep the property as his own and recover damages for the buyer's breach." The English rule is otherwise.3

II.

WHERE THE TITLE HAD NOT PASSED.

§ 1683. In general.- Passing now to the case in which the title has not passed at the making of the contract or by virtue of it, somewhat different considerations apply. In these cases usually the possession will remain in the seller, but it may pass to the buyer although the title remains in the seller; and the same subdivision adopted in the preceding sections may therefore be appropriate here, namely, the remedies (1) where the goods have been delivered, and (2) where the goods have not been delivered.

1. Where the Goods have been Delivered.

§ 1684. Recovery of goods and damages for breach of contract. Where the goods have been delivered but the title has not passed at the time the remedy is sought, it is obvious that Gratt. 785, 98 Am. Dec. 737; Holland v. Rea, 48 Mich. 218, 224; Cook v. Brandeis, 3 Metc. (Ky.) 555; Bagley v. Findlay, 82 Ill. 524]; Ames v. Moir (1889), 130 Ill. 582, 22 N. E. R. 535; Young v. Mertens (1867), 27 Md. 114; Barr v. Logan (1848), 5 Harr. (Del.) 52. 2 Burdick on Sales, p. 243.

See Hayden v. Demets (1873), 53 N. Y. 426, 431; Mason v. Decker (1878), 72 N. Y. 595; Van Brocklin v. Smeallie (1893), 140 N. Y. 70, 35 N. E. R. 415; Putnam v. Glidden (1893), 159 Mass. 47, 34 N. E. R. 81, 38 Am. St. R. 394 [citing Dustan v. McAndrew, 44 N. Y. 72; Haines v. Tucker, 50 N. H. 307; Girard v. Taggart, 5 Serg. & R. 19, 9 Am. Dec. 327; Rosenbaum v. Weeden, 18

3 Martindale v. Smith (1841), 1 Ad. & EL (N. S.) 389, 41 Eng. Com. L. 592.

the seller may be desirous of accomplishing one of two results, namely: either to recover the price, if possible, and let the title pass, or, on the other hand, to recover possession of his goods and obtain damages for the breach of contract.

§ 1685. His right to regain possession of the goods will depend upon the terms of the arrangement under which the buyer acquired possession. Usually this will be some form of a sale upon condition, and what these forms may be and what are the remedies of the seller under them are questions already considered in a previous chapter.1

§ 1686. The personal remedy of the seller against the buyer will depend upon a variety of circumstances. He may in some cases, as has been seen, sue for and recover the price, waiving his right to a restoration of the chattel and permitting the title to vest in the buyer. This general subject has been already sufficiently discussed.2

§ 1687.. He may, by express stipulation, be entitled to the price before the title passes, leaving the buyer to the personal agreement and responsibility of the seller."

§ 1688.. Where neither of these conditions is present, and the seller cannot or does not by the tender of the title vest it in the buyer,' no action for the price can be maintained, but the seller may recover damages for the breach of the buyer's agreement to buy and pay for the chattel. These damages will usually be the difference between the contract price and the market value of the chattel at the time and place of the breach,— a matter which will be more fully considered in the following sections."

1 See ante, § 538 et seq., 558 et seq. 2 See ante, § 619 et seq.

3 White v. Solomon (1895), 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537. 4 See post, § 1694.

5 See, for example, McCormick Harv. Mach. Co. v. Balfany (1899), 78 Minn. 370, 81 N. W. R. 10. 6 See post, § 1690.

2. Where the Goods had not been Delivered.

§ 1689. Where title has not passed and goods not deliv• ered, action for damages is remedy.- Where, however, before the title has passed or the goods have been delivered — and also where, though the title had passed, the law permits the vendor to treat the contract as rescinded and the title as revested in himself,— the remedy of the seller for the buyer's neglect or refusal to accept the goods and pay for them is, not an action for the price, but an action to recover damages for the breach of contract.

§ 1690. Measure of damages usually difference between contract price and market price at time and place of delivery. The measure of the damages which the seller is thus entitled to recover is usually the difference between the contract price and the market value at the time and place of delivery.1

1 Tufts v. Bennett (1895), 163 Mass. 398. 40 N. E. R. 172 [citing Barry v. Cavanagh, 127 Mass. 394; Whitney v. Boardman, 118 Mass. 242; Clement & Hawkes Mfg. Co. v. Meserole, 107 Mass. 362; Cutting v. Grand Trunk Ry. Co., 13 Allen (Mass.), 381; Valpy v. Oakeley, 16 Q. B. 941; Bigelow v. Legg, 102 N. Y. 652; Unexcelled Fireworks Co. v. Polites, 130 Pa. St. 536, 17 Am. St. R. 788; Grand Tower Co. v. Phillips, 23 Wall. (U. S.) 471; Atwood v. Lucas, 53 Me. 508]; Jones v. Jennings (1895), 168 Pa. St. 493, 32 Atl. R. 51; Funke v. Allen (1898), 54 Neb. 407, 74 N. W. R. 832, 69 Am. St. R. 716 [questioning Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 279, 62 N. W. R. 480, and citing Hale v. Hess, 30 Neb. 42; Scott Lumber Co. v. Hafner-Lothman Mfg. Co., 91 Wis. 667, 65 N. W. R. 513; Neal v. Shewalter, 5 Ind. App. 147, 31 N. E. R. 848; Ridgley v. Mooney, 16 Ind. App. 362, 45 N. E. R. 348; Browning v. Simons, 17 Ind. App. 45, 46 N. E. R. 86; Lawrence Canning Co. v. Lee

Mercantile Co., 5 Kan. App. 77, 48 Pac. R. 749; Miller v. Burch (Ky.), 41 S. W. R. 307; Heiser v. Mears, 120 N. C. 443, 27 S. E. R. 117]; Guillon v. Earnshaw (1895), 169 Pa. St. 463, 32 Atl. R. 545; Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203; Murray v. Doud (1897), 167 IL 368, 47 N. E. R. 717, 59 Am. St. R. 297; Tahoe Ice Co. v. Union Ice Co. (1895), 109 Cal. 242, 41 Pac. R. 1020; Yellow Poplar Lumber Co. v. Chapman (1896), 20 C. C. A. 503, 74 Fed. R. 444; Schram v. Boston Sugar Ref. Co. (1888), 146 Mass. 211, 15 N. E. R. 571; Pittsburgh, etc. R. Co. v. Heck (1875), 50 Ind. 303, 19 Am. R. 713.

Incidental expenses.-The scller cannot, by any act of his, enhance these damages. He cannot charge the buyer with storage or taxes or the costs of the resale. Tripp v. Forsaith Mach. Co. (1897), 69 N. H. 233, 45 Atl. R. 746. As to "commissions" for resale, they certainly cannot be recovered if they have not been paid.

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