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

§ 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 default 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

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. 3 Martindale v. Smith (1841), 1 Ad. Dec. 327; Rosenbaum v. Weeden, 18 & EL (N. S.) 389, 41 Eng. Com. L. 592.

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.

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.

$ 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.?

$ 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.

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1 See ante, SS 538 et seq., 558 et seq. 5 See, for example, McCormick 2 See ante, $ 619 et seq.

Harv. Mach. Co. v. Balfany (1899), 78 3 White v. Solomon (1895), 164 Mass. Minn. 370, 81 N. W. R. 10. 616, 42 N. E. R. 104, 30 L. R. A. 537. 6 See post, $ 1690. 4 See post, S 1694

2. Where the Goods had not been Delivered.

§ 1689. Where title has not passed and goods not delivered, 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.

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§ 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 Ill. 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.

If there be no market at that place, then the value at the nearest available market furnishes the basis, less the cost of transportation.

If no evidence of such market value is given, nominal damages only can be recovered; ? and this, of course, would be the extent of the recovery if there were no excess of the contract price over the market value.3

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$ 1691. — Time for delivery.- Where the contract fixes the time for delivery, that time will usually control. If the time for delivery has been postponed at the request of the buyer, then the market value at the postponed time furnishes the basis.* If no time were fixed, then, as has been seen, a rea

Gehl v. Milwaukee Produce Co. (1900), they were worth at the bridge the 105 Wis. 573, 81 N. W. R. 666.

market price less the cost of getting 1 Thus, in Barry v. Cavanagh (1879), them to the market, and the true 127 Mass. 394, where there was de- rule would be the difference between fault by the purchaser in taking pav. what they were so worth and the ing stones at a place named — Dover contract price. Stated otherwise, if Street Bridge, near Boston - where they were salable where they lay, to there was no market, and Boston was be delivered elsewhere at a price the nearest market, the court said: larger than the cost of delivery there, “The plaintiffs, if entitled to recover, the excess of such price above the were entitled to such sum in dam- cost of delivery was the market value, ages as would put them in as good which should have been deducted condition as if the defendants had from the contract price, in order to fulfilled their contract. That is to get at the damages.” say, they ought to have such sum of Where the buyer controls the marmoney as, added to the value of the ket at the time and place of delivery, goods where they lay, would put then also the measure is the differthem into the same financial condi- ence between the contract price and tion as if the defendants had ac- the market price at the nearest avail. cepted them and paid the contract able market, less the cost of transprice for them. Now, if, when they portation to that market. Yellow were brought to Dover Street Bridge, Poplar Lumber Co. v. Chapman (1896), where there was no market for them, 20 C. C. A. 503, 74 Fed. R. 444. it would cost all they would sell for 2 Tufts v. Bennett (1895), 163 Mass. at a market to carry them to the 398, 40 N. E. R. 172. market, they were valueless there, 3 Foos v. Sabin (1877), 84 Ill. 564. and they would be entitled to re- 4 Hickman v. Haynes (1875), L. R. cover the contract price in order to 10 Com. Pl. 598. Accord: Ogle v. be made whole. If they (the stones] Lord Vane (1868), L R. 2 Q. B. 275, could be conveyed to a market for a 3 id. 272. part of what they would sell for, 5 See ante, $ 1129.

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sonable time will be presumed, and the buyer's refusal to take the goods when tendered within a reasonable time will charge him with the liability.'

$ 1692. How market value shown - Resale.- What this market value is may ordinarily be shown by any competent evidence. It seems to be thought at times that the vendor must resell the goods, and that he does so in some sense as the agent of the vendee; but this is not true: the title to the goods by the hypothesis is still in the seller, and he may resell them or not as he chooses. If he does resell, he does so for the purpose of making evidence for himself and not as agent of the buyer. Without reselling, he may show the market value by the opinion of those familiar with the facts;: or, by reselling, under proper circumstances and within a reasonable time, he may establish what the market value of the goods in question actually was at the time in controversy.'

$ 1693. — Scope of evidence.— "Evidence as to the price," it is said in a well-considered case, “need not be confined to the precise time when the contract was to have been performed. It may sometimes be impracticable to show the price at the precise time, and hence evidence of the price for a brief period before and after the time may be given, not for the purpose of establishing a market price at any other time, but for the pur

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1 See Mayne on Damages (6th ed.), 3 Girard v. Taggart (1819), 5 Serg. 185. Where the goods are to be de & R. (Pa.) 19, 9 Am. Dec. 327; Anlivered when the buyer gives notice drews v. Hoover (1839), 8 Watts (Pa)

, that he is ready to receive them, he 239; Graham v. Maitland (1869), 6 is bound to give such notice within Abb. (N. Y.) Pr. (N. S.) 327, 37 How. a reasonable time; and if he fails to. Pr. 307. do so, the seller may offer to deliver See ante, § 1643. Must act with the goods without such notice and due diligence. Gehl v. Milwaukee the purchaser is bound to accept and Produce Co. (1900), 105 Wis. 573, 81 pay the price. Sanborn v. Benedict N. W. R. 666. (1875), 78 III. 309.

5 Cahen v. Platt (1877), 69 N. Y. 348, 2 See Moore v. Potter (1898), 155 25 Am. R. 203 [citing Dana v. Fiedler, N. Y. 481, 50 N. E. R. 271, 63 Am. St. 12 N. Y. 40; Dustan v. McAndrew, 44 R. 692, more fully referred to ante, N. Y. 72; Durst v. Burton, 47 N. Y. $S 1629, 1630.

167).

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