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other states it is held that in any case where the contract is for the sale of a commodity not in existence at the time, and which the seller is to manufacture or put in a condition to be delivered, the contract is one for work and labor.1

It may be doubted whether the states which have adopted one or the other of these views under the Statute of Frauds would generally admit, as a consequence of their decisions, that the contracts in question should be treated as contracts for work and labor in such a sense that the price must be paid for the work rather than for the title to the property. It would indeed be unfortunate if the strained construction which has been adopted in order to evade the Statute of Frauds should be applied in other classes of cases. It should rather be said, and probably would be, that though a contract may not be a contract of sale within the meaning of the Statute of Frauds, if it is contemplated that special work and labor by the seller shall go into it, it is, nevertheless, a contract of sale for other purposes. There can, in fact, be no doubt that the price is promised for the completed article, not for the work and materials which have gone into its manufacture. The reason, therefore, on which Bement v. Smith 2 was rested cannot be supported. It is not generally adopted today, and the New York court has long ceased to rest the buyer's right to the price on this reason. A later New York decision * laid down the rule broadly that

205; Goddard v. Binney, 115 Mass. 450 ; Turner v. Mason, 65 Mich. 662; Russell v. Wisconsin Ry. Co., 39 Minn. 145; Brown & Haywood Co. v. Wunder, 64 Minn. 450 ; Pitkin v. Noyes, 48 N. H. 294; Prescott v. Locke, 51 N. H. 94; Pawelski v. Hargreaves, 47 N. J. L. 334 ; Mechanical Boiler Co. v. Kellner, 62 N. J. L. 544; Roubicek 71. Haddad, 67 N. J. L. 522; Orman v. Hager, 3 N. M. 331 ; Puget Sound Depot v. Rigby, 13 Wash. 264; Meincke v. Falk, 55 Wis. 427 ; Hanson v. Roter, 64 Wis. 622; Gross v. Heckert, 120 Wis. 314; Williams-Hayward Co. v. Brooks, 9 Wyo. 424. See also Sawyer v. Ware, 36 Ala. 675; Scales v. Wiley, 68 Vt. 39.

1 Bennett v. Nye, 4 Greene (Ia.) 410 (cf. Mighell v. Dougherty, 86 la. 480; Lewis v. Evans, 108 la. 296; Dierson v. Petersmeyer, 109 Ia. 233) ; Eichelberger v. McCauley, 5 Har. & J. (Md.) 213; Bagby v. Walker, 78 Md. 239; Deal v. Maxwell, 51 N. Y. 652; Higgins v. Murray, 4 Hun (N. Y.) 565, 73 N. Y. 252; Parsons v. Loucks, 48 N. Y. 17; Cooke v. Millard, 65 N. Y. 352 ; Hinds v. Kellogg, 13 N. Y. Supp. 922; aff. 133 N. Y. 536; Deal v. Maxwell, 51 N. Y. 652; Talmadge v. Lane, 17 N. Y. Misc. 731, 41 N. Y. Supp. 413. See also Roubicek v. Haddad, 67 N. J. L. 522; Warren Co. v. Holbrook, 118 N. Y. 586, 593; Joy v. Schloss, 15 Abb. N. C. (N. Y.) 373; Winship v. Buzzard, 9 Rich. (s. C.) 103 ; Suber v. Pullin, i S. C. 273; Mattison v. Wescott, 13 Vt. 258; Ellison v. Brigham, 38 Vt. 64; Forsyth v. Mann, 68 Vt. 116; also Hientz v. Burkhard, 29 Ore. 55.

2 15 Wend. (N. Y.) 493.
3 It was, however, followed in Ballentine v. Robinson, 46 Pa. St. 177.
4 Dustan v. McAndrew, 44 N. Y. 72.

any seller might at his option store or retain the property for the vendee and sue him for the entire purchase price. This doctrine is stated broadly as applicable not only to cases where the title has passed, but to cases where the buyer's default consists in not letting it pass. This decision and the rule laid down therein have been very influential in other jurisdictions, and cases which refuse to confine the seller to the difference between the contract price and the market price generally go back to this New York decision for their foundation.

Of course, if the seller is entitled to the price, the buyer must be entitled to the goods. At what moment the title passes to him is not much discussed in the decisions, but the statement of the rule that the seller may store or retain the property for the buyer implies that when the seller deposits the goods with a third person for the buyer, or gives notice to the buyer by suing for the price or otherwise, that he himself is holding the goods for the buyer, either the title thereupon passes, or, what amounts to the same thing, the rights of the parties will subsequently be adjusted as if it had passed at that time. The remedy thus allowed is neither more nor less than specific performance of the contract. In a court of equity a contract for a purchase of land is enforced by a decree ordering the defendant to pay the price upon the transfer of title. In the case of a sale of goods the New York court and other courts following its rule allow the seller by force of his own expressed volition to make the buyer owner in spite of the buyer's dissent, and thereupon to recover the price.

Some states restrict the application of the New York doctrine to

1 “The vendor of personal property, in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (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.” Dustan v. McAndrew, 44 N. Y. 72, 78, per Earl, C. The same statement is expressly applied to executory contracts of sale in Ackerman v. Rubens, 167 N. Y. 405.

2 It would follow that thereafter the risk of loss must be upon the buyer, and this is borne out by the reasoning in Neal v. Shewalter, 5 Ind. App. 147, 154. The property in question in that case after having been wrongfully refused by the buyer was destroyed by fire. The court said the goods “remained the property of the (sellers). They did not place themselves in the position of bailees for the [buyers). Therefore they would be entitled only to the difference between the contract price and the market price at the time and place at which the [buyers] became in default.”

cases where the goods contracted for are of a peculiar kind, not readily salable on the market and as to which, therefore, a market price cannot readily be fixed. The doctrine, whether in its broadest or most restricted form, at first sight strikes most legal theorists as both anomalous and erroneous. It is generally condemned by the text-writers. But the rule in its more limited form should commend itself. The very fact of the wide adoption of a doctrine which is, and is known to be, contrary to the rule previously prevailing shows that the new doctrine must commend itself to the sense of justice of the courts, and if the matter be looked at broadly as one of justice rather than one of technical remedies permitted by our law, it will be hard to find a reason why the seller of land should be allowed to force the buyer to take it and pay the price while the manufacturer of goods for a special and peculiar order should not be. In such a case the seller may urge the very reason which courts of equity have habitually given for allowing specific performance of contracts in regard to sales of land, the inadequacy of damages. It is true the remedy is not mutual. The buyer is without specific redress if the seller refuses to make the goods, or refuses to give them up if he has made them. But the buyer is much less in need of the remedy of specific performance in this kind of case than the seller. If the seller does not manufacture the goods, the buyer can ordinarily do better by getting some one else to manufacture them than he could do by trying to force the seller to manufacture against his will. If the goods are already manufactured, the seller will rarely be disposed to withhold them from the buyer. The very fact that the goods are of a special kind and have no general market value will preclude the seller from making any other disposition of them. Doubtless cases could be put, however, where the buyer is in need of specific performance, but the fact that he is allowed no such right either at law or in equity ought not to dear the seller from specific redress. The requirement of mutuality has perhaps been pushed to the extreme of a technicality in equity.

It is not, however, chiefly because the rule is unjust that fault is found with it; it is rather because it seems at variance with estab

1 Kinkead v. Lynch, 132 Fed. Rep. 692; Black River Lumber Co. v. Warner, 93 Mo. 374; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; Gordon v. Norris, 49 N. H. 376; Smith v. Wheeler, 7 Ore. 49; Ballentine v. Robinson, 46 Pa. St. 177.

2 Mechem, Sales, § 1694 ; Burdick, Sales, 2 ed., § 364; Tiffany, Sales, $ 103. Benjamin does not refer to it.

lished legal principles. It seems anomalous that the seller should be able to force title upon the buyer by simply electing to do so. This is probably the reason why many jurisdictions reject the New York doctrine and follow the English law. Is it, however, so anomalous as is sometimes supposed for one party to an obligation to enforce it specifically against the other without the aid of a court of equity? Is it not constantly done in cases where rescission of title to personal property is allowed as a remedy? If a buyer obtains by fraud the seller's assent to transfer the ownership of goods, there is no doubt that the buyer gains title thereby. Yet there is no more doubt that the seller may regain his title by his own election so to do. Not only may he bring trover, but he may also bring replevin.* It can hardly be doubted that if the seller could regain possession of the goods peaceably without the aid of a court, he might do so, and would thereby be revested with title. This is nothing else than specific enforcement of the obligation of the fraudulent buyer to return the title wrongfully acquired by him. Moreover the seller must, as a condition of recovery, return to the buyer what

i Grier v. Simpson, 8 Houst. (Del.) 7; John Deere Co. v. Gorman, 9 Kan. App. 675; Moody v. Brown, 34 Me. 107 ; Tufts v. Grewer, 83 Me. 407 ; Greenleaf v. Gallagher, 93 Me. 549; Greenleaf v. Hamilton, 94 Me. 118; Tufts v. Bennett, 163 Mass. 398; McCormick Machine Co. v. Balfany, 78 Minn. 370; Funke v. Allen, 54 Neb. 407; Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536; Jones v. Jennings, 168 Pa. St. 493; Puritan Coke Co. v. Clark, 204 Pa. St. 556 (but see Ballentine v. Robinson, 46 Pa. St. 177); Gammage v. Alexander, 14 Tex. 414; Tufts v. Lawrence, 77 Tex. 526; Rider v. Kelley, 32 Vt. 268 ; American Leather Co. v. Chalkley, 101 Va. 458, 463. See also Morris v. Cohn, 55 Ark. 401; First Bank v. Ragsdale, 171 Mo. 168, 185; Dowagiac Mfg. Co. v. Mahon, 101 N. W. Rep. 903 (N. D.).

? Thus, if the buyer resells the goods to a purchaser for value without notice, the latter gets an indefeasible title. Leask v. Scott, 2 Q. B. D. 376; Williamson v. Russell, 39 Conn. 406; Walp v. Mooar, 76 Conn. 515, 517; Hall v. Hinks, 21 Md. 406; National Bank v. Baltimore & Ohio R. R., 59 Atl. Rep. 134; Goodwin v. Mass. Loan and Trust Co., 152 Mass. 189, 198; Root v. French, 13 Wend. (N. Y.) 570. But if the buyer had acquired merely possession by fraud, not even a purchaser for value without notice could get title. Baehr v. Clark, 83 Ia. 313; Rohrbrough v. Leopold, 68 Tex. 254. So the seller may “affirm” the sale and sue for the agreed price, - a remedy which proceeds upon the assumption that title is in the buyer. See Schwartz v. McCloskey, 156 Pa. St. 258, 264.

8 Thurston v. Blanchard, 22 Pick. (Mass.) 18; Moody v. Drown, 58 N. H. 45; Baird v. Howard, 51 Oh. St. 57, 22 L. R. A. 846.

• John V. Farwell Co. v. Hilton, 84 Fed. Rep. 293; Cox Shoe Co. v. Adams, 105 Ia. 402 ; Hall v. Gilmore, 40 Me. 578; Skinner v. Michigan Hoop Co., 119 Mich. 467 ; Field v. Morse, 54 Neb. 789; Baker v. McDonald, 104 N. W. Rep. 923 (Neb.), 1 L. R. A. (N. S.) 474; Sisson v. Hill, 18 R. I. 212, 21 L. R. A. 206.

5 Wheelden v. Lowell, 50 Me. 499.

ever was paid for the goods. Generally the buyer will refuse to receive it, and the seller may then tender it and recover as if he had actually returned it. Let it be supposed the price was itself in the form of a chattel. When the defrauded seller tenders back this chattel, and the tender is refused, and the seller thereupon is allowed to recover what he had parted with or its full value, the relief necessarily proceeds upon the assumption that the seller has restored title to the buyer in the chattel given as the price, without the buyer's assent. If the property in question is land and the buyer has fraudulently acquired a conveyance, the seller must go into equity in order to get a reconveyance, but in the case of a sale of goods he can regain title to what he has parted with and revest the buyer with title to the consideration without this procedure.

The same rules of law apply where rescission of title is allowed for other reasons than for fraud, -as mistake, duress, or infancy. So if an infant pleads his infancy in order to prevent recovery of the price of goods, the seller may replevy the goods. This necessarily means that the seller by his own election enforces specifically the obligation of the infant to return the goods which he will not pay for. To say that the infant's plea is an assent to retransfer the goods is to state a fiction. It is immaterial whether the infant assents or expressly dissents.

The remedies allowed to an unpaid seller after the title has passed to the buyer, other than the right to recover the price, illustrate the same principle. The seller may by his own act take title out of the buyer and revest it either in himself or in a third person to whom a resale of the goods is made. The English law formerly denied this, but the Sale of Goods Act now allows the right of resale. As yet the law of England does not allow a rescission of

1 Save in exceptional cases. See 21 L. R. A. 206, n., and i L. R. A. (N. S.) 474.

? Barnett v. Speir, 93 Ga. 762 ; Porter v. Leyhe, 67 Mo. App. 540. See also Milliken v. Skillings, 89 Me. 180.

8 In Nolan v. Jones, 53 Ia. 387, one arty to an exchange, induced by fraud, was allowed replevin to recover his goods. The court says that because of the fraud the transaction was “void,” but also says the plaintiff might have "affirmed” it. To the same effect is Porter v. Leyhe, 67 Mo. App. 540. Cf. Barnett v. Speir, 93 Ga. 762; Haase v. Mitchell, 58 Ind. 213, also cases of exchange.

+ Badger v. Phinney, 15 Mass. 359. 6 Martindale v. Smith, i Q. B. 389; Page v. Cowasjee Eduljee, L. R. 1 P. C. 127.

$ 48 (3). “Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and


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