1. Where the Goods are not Delivered.

§ 1783. Specific performance of agreement to deliver.— The mere fact that the title has passed does not necessarily warrant the conclusion that the buyer is entitled to immediate possession. The seller may be entitled to retain possession until some act is done, by virtue of an express term of the contract; and even in the absence of such an express term, the seller will, as has been seen,' have the right, unless he waives it, to retain possession by virtue of his lien until the price is paid.

But assuming that the buyer is entitled to the possession of the goods and that the seller's retention is wrongful, the buyer may, as has been seen, in cases involving special considerations, obtain a decree for the specific performance of the agreement to sell and to deliver.2

§ 1784. Action for damages for breach of agreement to deliver. It is, as has been seen, an implied if not an express term of the undertaking of the seller that he will not only transfer the title but will also deliver the goods to the buyer. How these duties are to be performed has already been considered, and the discussion need not be repeated here. If, therefore, the seller, having transferred the title, wrongfully refuses to deliver the goods, he violates his contract; and while the buyer has, as will be seen in following sections, the rights of an owner and may maintain trover or replevin, he has also, if he prefers to use them, the remedies based upon the breach of contract.

§ 1785. Measure of damages.- By the total breach of the seller's undertaking to deliver the goods, the buyer is placed in substantially the same predicament as though the seller had wholly refused to sell. He loses the goods, and he may recover

1 See ante, SS 1474 et seq. 2 See ante, § 1718 et seq. See also Fry on Specific Performance (1892),

SS 14, 41; Marsh v. Milligan (1857), 3
Jurist (N. S.), 979.

3 See ante, § 1116 et seq.

4 See ante, §§ 1112, 1116.

upon the basis of that loss—if he has paid the price, the full value of the goods;1 if he has not paid the price, the difference between the contract price and the value of the goods; if the goods were sold in contemplation of a special use, then the value for the use so contemplated may be made the basis.3 As to all of these matters, the rules already given will apply, and it seems unnecessary to repeat them.

§ 1786. Trover- Damages usually market value at time of conversion.- The buyer who has the title and is entitled to possession, instead of basing his action for damages upon the breach of the seller's contract to deliver, as suggested in the preceding section, may maintain an action of trover as for conversion against the seller who has refused to recognize the buyer's rights, or has wrongfully resold the property to another.1

The damages to be recovered in the action of trover are usually the value of the goods at the time of the conversion; but

1 See ante, § 1741.

2 See ante, §§ 1736-1740.

See ante, §§ 1771-1776.

4 Kennedy v. Whitwell (1827), 4 Pick. (Mass.) 466; Philbrook v. Eaton (1883), 134 Mass. 398. The wrongful resale constitutes the conversion, and not the subsequent refusal to surrender the goods upon demand. Philbrook v. Eaton, supra.

5 Kennedy v. Whitwell, supra; Terry v. Birmingham Nat. Bank (1890), 93 Ala. 599, 9 S. R. 299, 30 Am. St. R. 87; Jones v. Horn (1888), 51 Ark. 19, 9 S. W. R. 309; Sturges v. Keith (1870), 57 Ill. 451, 11 Am. R. 28; Brewster v. Van Liew (1886), 119 Ill. 554, 8 N. E. R. 842; Thew v. Miller (1887), 73 Iowa, 742, 36 N. W. R. 771; Simpson v. Alexander (1886), 35 Kan. 225, 11 Pac. R. 171; Wing v. Milliken (1898), 91 Me. 387, 40 Atl. R. 138, 64 Am. St. R. 238; Hopper v. Haines

5

(1889), 71 Md. 64, 18 Atl. R. 29, 20 Atl. R. 159; Jellett v. St. Paul Ry. Co. (1883), 30 Minn. 265, 15 N. W. R. 237; Beede v. Lamprey (1888), 64 N. H. 510, 15 Atl. R. 133, Mechem's Cas. on Damages, 389; Griggs v. Day (1892), 136 N. Y. 152, 32 N. E. R. 612, 32 Am. St. R. 704; Crampton v. Marble Co. (1888), 60 Vt. 291, 15 Atl. R. 153; Ingram v. Rankin (1879), 47 Wis. 406, 32 Am. R. 762; Arkansas Valley L. & C. Co. v. Mann (1888), 130 U. S. 69, 9 Sup. Ct. R. 458.

The fact that since the conversion, by a wrongful refusal to deliver upon payment and demand, and since the commencement of the action, the defendant has resold the goods at a price greater than the market price at the time of the conversion, does not entitle the plaintiff to damages based upon that increased price. Kennedy v. Whitwell, supra.

if the buyer has not paid the price, he recovers only to the extent of his interest, which will usually be the difference between the contract price and the market value at the time of the conversion.1

§ 1787. How when goods of fluctuating valueStocks, bonds, etc.- The general rule, however, which bases the damages upon the market value of the goods at the time of the conversion, has been modified with respect of stocks, bonds, commercial securities and other property the market value of which is liable to frequent and great fluctuation caused by the depression and inflation of prices in the market.

2

There has been, in such cases, some tendency to hold that the measure of damages for the conversion of such securities should be the highest market price between the time of the conversion and the trial; but the weight of authority, following the later cases in New York, permits the recovery only of the highest market value which the goods have reached between the date of the conversion and a reasonable time thereafter within which the plaintiff might have supplied himself with other goods of the same kind.3

§ 1788.

Because " more transactions of this kind arise in the State of New York than in all other parts of the country," the supreme court of the United States adopted the New

1 Chinery v. Viall (1860), 5 Hurls. & Norm. 287; Mayne on Damages (6th Eng. ed.), p. 416.

2 See Romaine v. Van Allen (1863), 26 N. Y. 309; Markham v. Jaudon (1869), 41 N. Y. 235, now overruled by the later New York cases cited in the next note.

3 Baker v. Drake (1873), 53 N. Y. 211, 13 Am. R. 507; Baker v. Drake (1876), 66 N. Y. 518, 23 Am. R. 80; Gruman v. Smith (1880), 81 N. Y. 25: Colt v. Owens (1882), 90 N. Y. 368; Wright v. Bank of Metropolis (1888), 110 N. Y. 237, 18 N. E. R. 79,6 Am. St. R.

356, 1 L. R. A. 289, Mechem's Cas. on Damages, 469; Galigher v. Jones (1888), 129 U. S. 193, 9 Sup. Ct. R. 335; Andrews v. Clark (1890), 72 Md. 396, 20 Atl. R. 429; Fosdick v. Greene (1875), 27 Ohio St. 484, 22 Am. R. 328; Freeman v. Harwood (1859), 49 Me. 195; Fisher v. Brown (1870), 104 Mass. 259, 6 Am. R. 285; Walker v. Borland (1855), 21 Mo. 289; Brewster v. Van Liew (1886), 119 Ill. 554,8 N. E. R. 842, 59 Am. R. 823; Galena, etc. R. Co. v. Ennor (1888), 123 Ill. 505, 14 N. E. R. 673; Hill v. Smith (1859), 32 Vt. 433; Ingram v. Rankin (1879), 47 Wis. 406, 2

York rule, saying: "The hardship which arose from estimat ing the damages by the highest price up to the time of trial, which might be years after the transaction occurred, was often so great that the court of appeals of New York was constrained to introduce a material modification in the form of the rule, and to hold the true and just measure of damages in these cases to be the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. It would be a herculean task to review all the various and conflicting opinions that have been delivered on this subject. On the whole it seems to us that the New York rule, as finally settled by the court of appeals, has the most reasons in its favor, and we adopt it as a correct view of the law."1

2. Where the Goods have been Delivered.

§ 1789. What questions arise.- Where, however, the seller has not only done that which is necessary to pass the title, but has also delivered the goods into the possession of the buyer, different questions arise. It may happen that, though the seller may have delivered the goods and may have done all that would ordinarily be necessary to transfer the title, no title will in fact be conveyed because the seller had none; or, though the title may have been transferred, the goods may be subject to liens or incumbrances which detract from, if not destroy, their value.

N. W. R. 755, 32 Am. R. 762; Coffman v. Williams (1871), 51 Tenn. (4 Heisk.) 233; Jackson v. Evans (1880), 44 Mich. 510, 7 N. W. R. 79; Chadwick v. Butler (1873), 28 Mich. 349; Bates v. Stansell (1869), 19 Mich. 91. In Alabama, see Burks v. Hubbard (1881), 69 Ala. 379.

In lowa, see Gilman v. Andrews (1885), 66 Iowa, 116, 23 N. W. R. 291. In Indiana, see Citizens' St. Ry. Co. v. Robbins (1895), 144 Ind. 671, 42

N. E. R. 916, 43 N. E. R. 649, 25 Am.
St. R. 445.

In Texas, see Heilbroner v. Doug lass (1876), 45 Tex. 402.

In Pennsylvania, see Huntington, etc. Coal Co. v. English (1878), 86 Pa. St. 247; North v. Phillips (1879), 89 Pa. St. 250; Work v. Bennett (1872), 70 Pa. St. 484; Neiler v. Kelley (1871), 69 Pa. St. 403.

1 Galigher v. Jones (1888), 129 U. S. 193, 9 Sup. Ct. R. 335.

So, though the title may in fact have been transferred and the goods have been delivered, it may be found that the goods are not such in kind, quality or condition as they were expressly or impliedly warranted to be.

Three general groups of questions therefore present themselves:

(a) Where the goods are delivered, but not at the time

agreed upon.

(b) Where the title fails in whole or in part.

(c) Where the goods are defective in kind, quality or condition.

Each of these will be given separate consideration.

a. Where there was Delay in Delivery.

§ 1790. Measure of damages for delayed delivery. The buyer who has accepted a delayed delivery is, unless he has waived his right,' entitled to damages for the delay. Of the loss by delay, in the ordinary case, the measure is the rental value for the period and not the loss of profits which might have been made with the article during that period, certainly where such a use was not within the contemplation of the parties, nor, in any case, where the profits would be uncertain or speculative, as the amount of profit that might have been made by the buyer's mill if he had had the engine contracted for to operate it, or the profit that might have been made by operating an excursion steamer if the machinery had been supplied in time."

1 See ante, § 1389.

2 Brownell v. Chapman (1892), 84 Iowa, 504, 51 N. W. R. 249, 35 Am. St. R. 326, Mechem's Cases on Damages, 139: Griffin v. Colver (1858), 16 N. Y. 489, 69 Am. Dec. 718, Mechem's Cases on Damages, 126; Benton v. Fay (1872), 64 Ill. 417. Interest on the price paid in advance may be recov ered where no other damages are shown. Edwards v. Sanborn (1859), 6 Mich. 348. Depreciation in market

value during the delay may be recov ered. Speirs v. Halstead (1876), 74 N. C. 620; Clements v. Hawkes Mfg. Co. (1871), 107 Mass. 362.

3 Thomas, etc. Mfg. Co. v. Wabash, etc. Ry. Co. (1885), 62 Wis. 642, 22 N. W. R. 827, Mechem's Cases on Damages, 149, where the defendant did not know the goods were bought for use, or, if so, for what use.

Griffin v. Colver, supra.

5 Brownell v. Chapman, supra.