General rule of a. Where there was Delay in Deliv

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

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

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

$ 1816.

§ 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 matter 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

of his agreement to transfer the title and surrender the possession to the buyer.

Specific performance, however, as will be seen, is not always practicable nor usually necessary. If the buyer has paid the price in advance, there may be often strong reasons for such a remedy; but if the buyer has not paid in advance and still has the money in his pocket, he may usually go into the market and supply himself with like goods, perhaps with no loss, and usually with but little. In such a case a recovery of damages adequate to compensate for such a loss would furnish a complete and satisfactory remedy. There may, on the contrary, be cases in which like goods cannot be procured in the market, and in such event the recovery of damages does not furnish so satisfactory a remedy.

§ 1718. Specific performance not usually the remedy.As has been intimated above, specific performance of the contract to sell and convey a chattel will not usually be decreed.1 As is said by Lord Justice Fry: 2 "The court for the most part refuses to interfere in respect of chattels, both because damages are a sufficient remedy and because the price of such articles, especially of merchandise, varies so as often to render the specific

I See Moulton v. Warren Mfg. Co. (1900), Minn. 83 N. W. R. 1082; Northern Trust Co. v. Markell (1895), 61 Minn. 271, 63 N. W. R. 735; Steinmeyer v. Siebert (1899), 190 Pa. St. 471, 42 Atl. R. 880, 70 Am. St. R. 641; Hissam v. Parrish (1896), 41 W. Va. 686, 24 S. E. R. 600, 56 Am. St. R. 892; Manton v. Ray (1894), 18 R. I. 672, 29 Atl. R. 998, 49 Am. St. R. 811; Eckstein v. Downing (1886), 64 N. H. 248, 9 Atl. R. 626, 10 Am. St. R. 404; New England Trust Co. v. Abbott (1894), 162 Mass. 148, 38 N. E. R. 432, 27 L. R. A. 271; Williams v. Montgomery (1896), 148 N. Y. 519, 43 N. E. R. 57; Todd v. Diamond State Iron Co, (1889), 8 Houst. (Del.) 372, 14 Atl. R. 27; Clark v. Truitt (1899), 183 IIL 239,

55 N. E. R. 683; Ames v. Witbeck (1899), 179 Ill. 458, 53 N. E. R. 969; Anderson v. Olsen (1900), 188 Ill. 502. 59 N. E. R. 239; Carolee v. Handelis (1897), 103 Ga. 299, 29 S. E. R. 935; Millirons v. Dillon (1897), 100 Ga. 656, 28 S. E. R. 385; Krouse v. Woodward (1895), 110 Cal. 638, 42 Pac. R. 1084; Stuart v. Pennis (1895), 91 Va. 688, 22 S. E. R. 509; Electric Service Co. v. Gill-Alexander Co. (1894), 125 Mo. 140, 28 S. W. R. 486; Rigg v. Reading, etc. St. Ry. Co. (1899), 191 Pa. St. 298, 43 Atl. R. 212; Lining v. Geddes (1826), 1 McCord (S. C.), Eq. 304, 16 Am. Dec. 606.

2 Fry on Specific Performance (3d Eng. ed., 1892), § 78.

execution of contracts for their sale and delivery an act of injustice, entailing perhaps ruin on one side, when upon an action that party might not have paid perhaps above a shilling damages. As these principles, however, do not apply to all cases of chattels, exceptions arise, which we shall now consider."

§ 1719.

Where chattel is unique.-"When the chattel in question is unique," continues the same authority," when there is, over and above the market value, that which has been called the pretium affectionis, the court, whether the plaintiff's right has arisen from contract or not, has interfered and not left him to his common-law remedy. The leading case in this branch of the law is Pusey v. Pusey, in which the heir of the family of Pusey recovered possession by a bill in equity of the celebrated Pusey horn: the grounds of the decision are insufficiently reported, but the case 'turned,' to quote Lord Eldon's language in respect of it,3 upon the pretium affectionis independent of the circumstance as to tenure, which could not be estimated in damages.' This has been followed by other similar cases, one having relation to an ancient silver altarpiece, remarkable for a Greek inscription and dedication to Hercules;' another to a tobacco-box of a remarkable and peculiar kind; another to masonic dresses and ornaments; and another to a very finely engraved cherry stone. These particular cases were suits grounded on tort or trust: but the same principle applies to cases of contract relating to chattels."

1 Fry on Specific Performance, ubi Lowther, 13 Ves. 95. A ship is probsupra, SS 79, 80. ably within this principle. See Lynn v. Chaters, 2 Ke. 521, and Claring

21 Vern. 273.

3 In Nutbrown v. Thornton, 10 Ves. bould v. Curtis, 21 L. J. Ch. 541: De

163.

4 Duke of Somerset v. Cookson, 3 P. Wms. 390.

5 Fells v. Read, 3 Ves. 70.

6" Lloyd v. Loaring, 6 Ves. 773. See also Saville v. Tankred, 1 Ves. Sr. 101; s. C., 3 Sw. 141, n.; Lady Arundell v. Phipps, 10 Ves. 139; Lowther v. Lord

Mattos v. Gibson, 4 De G. & J. 276"

7" Per Lord Hardwicke in Pearne v. Lisle, Ambl. 75, in which case a specific delivery of negroes was prayed, but that is not necessary,' said his lordship; 'others are as good."" But in Young v. Burton (1841), 1 McMul. (S. C.) Eq. 255, this