the title otherwise than by resale, but the right of resale necessarily involves a transfer of title without the assent of the owner of the property. It does not help the matter to imply a fictitious agency calling the seller the agent of the buyer to resell. In this country the seller's right not simply to resell the goods, but to rescind the transfer of title and take title back to himself, is well recognized.1 Thus, if the seller resells the goods for a greater price than that fixed by the original bargain, the original buyer is not entitled to the difference. It is the profit of the seller since he was justified in regarding the goods as his own.2 The seller in thus acting is foreclosing his lien. In case he chooses to resell on account of the buyer it is a foreclosure by sale. In case he elects to retake title to himself it is a strict foreclosure. In the case of land a bill in equity might be necessary. In the case of goods the result is reached more summarily.

In the converse case, where the buyer seeks to rescind a transfer of title to him, whether for fraud, mistake, or breach of warranty, the same rule again prevails. The buyer may, if he chooses, recover the price that he has paid, and is not obliged to sue for the difference in value between the property which he has acquired and the price which he paid. He recovers the price in full if he elects to do so. This election necessarily operates as a transfer of the title back to the seller. The doctrine which permits one whose goods have been converted to "waive the tort" and sue for the value of the goods, or the price for which the converter has sold them, is another case where a plaintiff transfers title by his own action, without any assent of the defendant. Indeed, even where trover is brought for the conversion, it is impossible to justify the existing rule of damages which gives the injured party the full value of the goods except on the theory that the title to the goods is transferred to the buyer. If the plaintiff were regarded as continuing the owner of the goods, he should recover damages equal in amount only to the loss which he suffered by the deprivation of possession

recover from the original buyer damages for any loss occasioned by his breach of contract."

1 See cases cited ante, p. 364, n. I.

2 Warren v. Buckminster, 24 N. H. 336; Bridgford v. Crocker, 60 N. Y. 627. See also Strickland v. McCulloch, 8 N. S. W. 324. So the Indian Contract Act, § 107, provides that the lien-holder, though title has passed, may resell the goods, and though "the buyer must bear any loss," he "is not entitled to any profit which may occur on such resale."

See Keener, Quasi-Contracts, 159.

of the property. If the property were destroyed, of course this would equal the value of the goods; but if the property still remained in existence, it might well be a comparatively small amount.1

A case which presents a still closer analogy to that primarily under discussion arises in the law of conditional sales. As will be seen hereafter, in such sales the buyer may recover the full price, though title to the goods has not been transferred. It is further generally held that if the seller sues for the price, he cannot thereafter reclaim the goods, although according to the contract the title was to remain in the seller until the price was paid. Thus the seller loses a title which by the contract was still to remain in

1 It is actually held that title to the goods passes to the defendant either when judgment is given for the plaintiff or when the execution upon the judgment is satisfied. See Miller v. Hyde, 161 Mass. 472. So late a time as either of these days seems somewhat inconsistent with the rule of damages, because in order to justify full damages it would seem on theory that the plaintiff must have had a cause of action justifying such damages at the time the action was brought, an assumption which can only be sustained as a universal rule on the theory that title to the property had passed to the defendant at that time. If we take the time of transfer of title, however, to be the later period when judgment is rendered or execution satisfied, there is still a case where title is transferred from one party to the other without the assent of both parties and without the aid of a court of equity.

2 Parke Co. v. White River Co., 101 Cal. 37; Holt Mfg. Co. v. Ewing, 109 Cal. 353; Crompton v. Beach, 62 Conn. 25; Smith v. Gilmore, 7 D. C. App. 192; Richards v. Schreiber, 98 Ia. 422; Bailey v. Hervey, 135 Mass. 172; Whitney v. Abbott, 191 Mass. 59; Button v. Trader, 75 Mich. 295; Alden v. Dyer, 92 Minn. 134; Dowagiac Mfg. Co. v. Mahon, 101 N. W. Rep. 903, 905 (N. D.). See also Smith v. Barber, 153 Ind. 322. These decisions seem erroneous and are opposed to the following: Forbes Piano Co. v. Wilson, 144 Ala. 586; Jones v. Snider, 99 Ga. 276; Dederick v. Wolfe, 68 Miss. 500; McPherson v. Acme Lumber Co., 70 Miss. 649; Campbell Press Co. v. Rockaway Pub. Co., 56 N. J. L. 676. See also Thomason v. Lewis, 103 Ala. 426; Fuller v. Byrne, 102 Mich. 461; Matthews v. Lucia, 55 Vt. 308. The error in the decisions first cited is this, - the reservation of title by the seller is for the purpose of securing the price. The transaction is in its essence the same as a chattel mortgage given by the buyer on the purchased property to secure the price. Just as the mortgagee may sue for the price and also foreclose his mortgage upon the property, so the seller in a conditional sale should be allowed to sue for the price and also reclaim the property, not as his own, but for the purpose of foreclosing it; that is,—for the purpose of endeavoring to realize from it the full amount due him. Of course, as in the case of a mortgage, the seller should be restricted to satisfaction of his claim with interest. If, therefore, judgment for the price is satisfied in part, this should be credited, and any excess over the amount due, which may be acquired by seizing and disposing of the goods, should be returned to the buyer. Though the cases cited at the beginning of this note may be erroneous for the reason just given, the error does not relate to the matter for which the cases are here cited; namely, the power of a court of law to treat an election on the part of the plaintiff as effectual to transfer title to property to the defendant.

him, and the buyer acquires it when and because the seller elects to sue for the price. A further illustration is found if the seller under a conditional sale attaches or levies execution upon the property sold. Even in jurisdictions which do not regard the mere act of suing for the price a binding election, such a seizure debars the seller from thereafter reclaiming the property. In effect it transfers title to the buyer. The same rule is applied in the case of chattel mortgages. Even in jurisdictions where it is held that a mortgage vests a legal title in the mortgagee, attachment of the goods by him deprives him of all rights of ownership in the property.2

A somewhat analogous doctrine of self-help exists in the law of executory contracts. If one party to such a contract is guilty of a material breach, the other party may elect to rescind it. Courts have sometimes endeavored to make out mutual assent by calling the breach or repudiation of the wrongdoer in such a case the offer to rescind; but this is an obvious fiction. In truth, the wrongdoer is under an obligation to permit the rescission of the contract, and the injured party is allowed to enforce the obligation by treating the contract as rescinded without the aid of a court.3

The illustrations which have been given show that the allowance of what is in effect specific performance of an obligation, or the transfer of title at the election of one party without the assent of the other without resort to a court of equity, is not unusual in our law, and most persons would hesitate to say that in these illustrative cases the plaintiff should be denied the specific execution of the obligation due him. Courts of equity have confined the right of specific performance of affirmative obligations in regard to personal property so narrowly that either injustice must be done or the necessary remedy must be sought in another way. Indeed, it may be questioned whether the remedy of a bill in equity would be so satisfactory in the case of ordinary sales of goods as the shorter cut afforded by courts of law. If the proper equitable remedy cannot be adequately reproduced by the

1 Tanner Engine Co. v. Hall, 89 Ala. 628; Montgomery Iron Works v. Smith, 98 Ala. 664; Fuller v. Eames, 108 Ala. 464; Albright v. Meredith, 58 Oh. St. 194.

2 Libby v. Cushman, 29 Me. 429; Whitney v. Farrar, 51 Me. 418; Evans v. Warren, 122 Mass. 303; Dyckman v. Sevatson, 39 Minn. 132; Haynes v. Sanborn, 45 N. H. 429.

3 See Wald's Pollock, Contracts, 3 ed., 339 et seq. In France and Louisiana the injured party brings an action in court for the rescission of the contract.

procedure of a court of law, it is doubtless wrong for it to invade the province of equity. Likewise the results which equity with its elastic decrees reaches in analogous cases must be taken as the standard of permissible relief, and it is only to reach such results by the judgment of a court of law or by permitting an injured person to work out his own redress, that relief in these summary ways should be allowed. But where the same result can be reached at law as in equity, the court of law not only may invade the province of equity, but it should do so if the rule of equity is more just. Especially should it do so if the court of equity for technical reasons refuses to take jurisdiction of the case, and the court of law must give the only available remedy. Where a seller has prepared goods of a special and peculiar kind under a contract and the buyer wrongfully refuses to take them, this reasoning is particularly applicable. Damages are not an adequate remedy for the seller. He does not want the goods himself and he cannot resell them readily, yet they are not without value, and if he is confined to the difference between their value and the contract price, a substantial diminution from the price would be made. Further, a court of equity will not take jurisdiction of the case. Though there is the same reason for doing so as exists in the case of a contract for the sale of land, so far at least as the seller's side of the bargain is concerned, courts of equity have been indisposed to extend their jurisdiction to such cases.1

It is worth noticing that in the civil law the buyer is entitled to recover the full price when the seller is in default. By the classical civil law title never passed until delivery of the goods.2 So that in any case to allow the buyer to recover the full price when the seller refused to accept delivery necessarily involved recovery of the price by one who had not transferred the title. The Ro

1 It should perhaps be said, in order to prevent misapprehension, that the rule contended for is only applicable where the contract has been broken by the buyer after the goods have been procured or manufactured. If the buyer repudiates his contract or countermands his order before the goods have been manufactured or procured by the seller, he ought not to be allowed, and generally is not allowed, to enhance the damage of the buyer by manufacturing or procuring the goods. Wald's Pollock, Contracts, 3 ed., 349.

2 Moyle, Contract of Sale in the Civil Law, 110.

Pothier, Contract of Sale, § 280: "When the contract contains no provision for credit, the seller may immediately commence this action (actio venditi) against the buyer upon making the offer which he ought to do to deliver the thing, provided it is not already delivered. If after the contract the thing ceases, without the fault of the seller, to be in a situation to be delivered, the seller is not thereby deprived of his right

man law, indeed, went further than this. Even though the goods had been destroyed by accident before delivery, and therefore before transfer of title, the risk was thrown on the buyer, and the seller was allowed to recover the price. It may therefore be urged that the Roman law virtually made the promises of buyer and seller independent, and that as such a doctrine is not only clearly inconsistent with our law, but also with fundamental principles of justice, no desirable suggestion or analogy can be derived from that system of jurisprudence. The rule of the classical Roman law in regard to risk is, however, generally abolished today in Europe; and the recognition of the dependency of the promises in a bilateral contract is as completely recognized, perhaps more completely recognized, on the continent of Europe than in England.3 But in spite of this, the rule in regard to the recovery of the price persists. This is true in France. So the old German commercial code, which was in force not simply in Germany but also in Austria, and is still in force in the latter country, provides: "If the buyer is in default in accepting the goods, the seller may deposit them, at the risk and expense of the buyer, in a public warehouse or otherwise in a safe manner."5 The new commercial code in force throughout the German Empire since 1897 copies this provision. Even in Scotland the same rule prevails today, for the rule of the civil law is preserved in the Sale of Goods Act.7

of commencing his action for the payment of the price. But while the seller is in default in delivering the thing sold, he cannot demand the price of it.”

1 See 9 HARV. L. REV. 72.

2 See 9 HARV. L. Rev. 76.

3 See 13 HARV. L. REV. 80.

4 Code Civil, art. 1138, 1652; 2 Troplong, n. 603; Massé et Vergé, n. 10.

5 Handelsgesetzbuch, § 343.

• Handelsgesetzbuch of 1897, § 373. In commenting upon this provision Lehmann and Ring say in their Kommentar zum Bürgerlichen Gesetzbuche und seinen Nebengesetze (Berlin, 1901), ii, 101, “Since the seller is no longer responsible for the goods, he acquires the right to the price and must only make allowance for what he saves in consequence of being freed from performance or what he acquires or wrongfully fails to acquire through other application of his labor. He can also recover from the buyer indemnity for the necessary expenses for the care and custody of the goods. He must even be allowed a claim for storage if he is a merchant."

7" 49. (3) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be." Chalmers, in his annotation of the section, quotes as the authority for this provision, Mercantile Law Com. mission, 1855, second report, p. 47: “The seller may sue the purchaser for the price and interest, whether the goods sold are specified or not, provided goods according to the contract have been tendered to the purchaser."