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coal throughout the year at a uniform rate per ton, though the coal in some seasons was worth more than the price fixed, and the buyer, after getting the benefit of the rate during the season when coal was high, repudiated it at the time when the price was lower, it was held that the seller might treat the repudiation as a rescission and recover the market price of the coal furnished though in excess of the contract price.1

Paper Co. (1897), 57 Ohio St. 182, 48 N. E. R. 888 [citing Chamberlin v. Scott, 33 Vt. 80; McCullough v. Baker, 47 Mo. 401; Kearney v. Doyle, 22 Mich. 294; Buffkin v. Baird, 73 N. C. 283; United States v. Behan, 110 U. S.

1390

338; Merrill v. Railroad Co., 16 Wend. 586: Clark v. Mayor of N. Y., 4 N. Y. 338].

1 Wellston Coal Co. v. Franklin Paper Co., supra.

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CHAPTER IV.

OF THE REMEDIES OF THE BUYER AGAINST THE SELLER.

1714. Purpose of this chapter. 1715. How subjects classified.

L WHERE THE TITLE HAS NOT PASSED.

1716. In general.

§ 1734, 1735. Action at law for damages the usual remedy.

1736-1740. Measure of damages usually difference between contract price and value of goods at time and place of delivery.

How, when price paid in advance.

How, when no market at place of delivery.

How, when goods have no market value.

How, when goods have neither market nor actual value.

How, when no difference between contract price and market value.

How, when goods to be delivered in instalments.

1741.

1742.

1743.

1744.

1745.

1746.

1747.

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How, when goods to be delivered "on or before" a certain day.

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§ 1757-1759.

General rule of a. Where there was Delay in Deliv damages for breach of con

ery.

tract- Hadley v. Baxen- § 1790-1792. Measure of damages for

dale.

1760. How the rule applies to sales.

delay.

1761. Loss of profits on resale con- b. Where Title Fails in Whole or in

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REMEDIES OF BUYER AGAINST SELLER. [§§ 1714, 1715.

Purchaser of draft with | § 1835. Buyer may recover for breach

bill of lading attached.

of warranty though he has not paid the price.

Or though he has paid

the price.

Or though he may have resold the goods.

Or though he may have made a profit on them. Remedies for deceit or fraud. Elements of fraud.

$ 1816.

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tions.

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Representations must

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Reliance on representa

have been proximate cause of injury.

Measure of damages.

1844. Buyer may recoup damages in action by seller for the price.

1845-1847. Defense of failure of consideration.

1848-1850. Recovery as for failure of consideration.

§ 1714. Purpose of this chapter.- Having now considered the remedies of which the seller may avail himself either against the goods or the buyer personally, or both, there remains only to be ascertained what are the remedies to which the buyer may have recourse against the seller. The range of these remedies will necessarily be less wide than those of the seller, because the buyer cannot often be in a situation to seek remedies against the goods, but must usually confine himself to actions against the seller personally.

§ 1715. How subjects classified.— In dealing with the mat ter of the buyer's remedies, a classification substantially the same as that adopted in the preceding chapter may be found convenient. Thus there may be considered the remedies of the buyer

I. Where the title has not passed, and

1. The goods have not been delivered, or
2. The goods have been delivered.

II. Where the title has passed, and
1. The chattel is not delivered, or
2. The chattel is delivered, but

(a) There is delay in delivery, or

(b) The title fails in whole or in part, or
(c) The chattel proves not to be of the kind or
quality represented or warranted.

I.

WHERE THE TITLE HAS NOT PASSED.

§ 1716. In general.-The simplest form, perhaps, of the seller's breach of contract is that which is presented when, while the contract remains wholly executory, he fails or refuses to proceed with its performance. Uusually and naturally the goods will not have been delivered, but will still remain in the possession of the seller. He may, however, have gone so far as to deliver the goods in anticipation of the transfer of the title, as in the common case already considered of the conditional contract to sell, under which possession is transferred but title is retained until the price is paid; or the case in which the goods at the time of the contract were already in the possession of the buyer. Each of these general types may be considered separately.

1. Where the Goods have not been Delivered.

§ 1717. Seller's breach of contract to sell and convey.As has been stated in the preceding section, the simplest type of the seller's breach of his undertaking is the case in which he repudiates the contract while it remains wholly executory, and wrongfully fails or refuses to transfer the title and deliver possession to the buyer.

The ideal remedy for this state of things would, perhaps, seem to be some process or proceeding by which the seller could be specifically compelled to do the very thing which he agreed to do, to wit, to actually enforce specific performance

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