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3. Possession RETAINED, BUT TITLE PASSED Recovery of Price.-A seller who has parted with title is himself entitled to the purchase price, and may sue for it, in an action of debt or indebitatus assumpsit, accordingly.* This action can not be maintained, however, if the seller has given credit, until the period of credit has expired. Until that time the seller is not entitled to payment of the sum, as a debt, and there is no breach of contract on the part of the buyer in failing to pay it. Even the refusal of the buyer to accept the goods as tendered, or his becoming insolvent, obviously can not advance the date at which the seller was to become entitled to the purchase price and he can not therefore sue for it before that time.

But if the credit was obtained by fraud it is sometimes held that the seller is allowed to rescind so much of the contract as appertains to the credit, while treating that part which pertains particularly to the transfer of title and the price as still in force. In such case he may sue for the price just as though no credit had been


seller who had brought suit for rier was expressly stated to be the the purchase price could not there- consideration. Compare also, Hel. after retake possession, Bailey v. ler v. Elliott, 44 N. J. L. 467 and Hervey, 135 Mass. 172, and that Campbell etc. Co. v. Rockaway such a seller could not recover Co., 56 N. J. L. 676; Holt Mfg. Co. the purchase price after destruc- v. Ewing, 109 Cal. 353, and Mattetion of the property, Tobbut v. son v. Equitable Mining Co., 143 Amer. Ins. Co., 185 Mass. 419. Yet Cal. 436; Forbes Co. v. Wilson, the same court has held that a 144 Ala. 586; Alexander v. Mobile conditional seller could recover Auto Co., 200 Ala. 586, 76 So. 944. the full amount of the purchase 48–Tatum v. Ackerman, 148 price without having passed title, Cal. 357, 113 Am. St. 276; Brady White v. Solomon, 164 Mass. 516. v. Isler, 9 Lea (Tenn.) 356; BradThis may well be explained on the ford V. Marbury, 12 Ala. 520; ground that the courts of Massa- Keller v. Strasburger, 90 N. Y. chusetts will not presume that in 379; Girard v. Taggart, 5 Serge & an ordinary conditional sale the Rawle (Pa.) 19; Dutton y. Solopossession is the consideration monson, 3 Bos. & Pul. 582; Musfor the price, but that in White v. sen v. Price, 4 East. 147. Solomon the delivery to the car

*See Uniform Sales Act, Section 63, (1).

given.29 Other courts, however, more logically, hold that the matter of credit is an intrinsic part of the contract of sale and that the contract must be rescinded as a whole, or not at all, and that therefore the seller can not sue for the purchase price before the period of credit has expired, even in cases of fraud.60

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Breach of Contract.-Of course, if the buyer refuses to pay the price when due, the seller can, if he chooses, sue to recover damages for breach of the contract instead of suing in debt for the price itself.

But where title has already passed and the buyer merely refuses to receive the possession, the damage to the seller from that refusal itself is slight, if any. thing. This refusal, however, may and presumably does indicate an intent on the buyer's part not to pay when payment becomes due. It may amount, therefore, to an anticipatory breach. The buyer can not be said to have broken his promise to pay, since the time for payment has not arrived. He may be said, however, to have impliedly announced that he will not pay when the time does come; in other words, to have committed an anticipatory breach of the contract. If this is the fair implication, he may be sued at once for damages resulting from his breach, in most jurisdictions.51*

49—Heillbronn V. Herzog, 165 might at once sue for damages for N. Y. 98; Willson v. Force, 6 breach of the agreement to give Johns. (N. Y.) 110; Joffray V. "security," i. e., the notes. It was Wolf, 4 Okla. 303.

further held that the damage from 50—Jones v. Brown, 167 Pa. 395. this failure to give the notes was

51–Nichols v. Scranton Steel "the whole damages equal to the Co., 137 N. Y. 471; Engesett v. value of the security had it been McGilvray, 63 Ill. Ap. 461; in given, prima facie the amount of Orr v. Leathers, 27 Ind. A 572,

the sum secured." (Author's it was held that on the buyer's re- italics). Citing 2 Sutherland on fusal to give promissory notes as Damages (2d Ed.) sec. 644. agreed, the seller need not wait Cook v. Stevenson, 30 Mich. 242; for the expiration of the credit but Hanna v. Mills, 21 Wend. (N. Y.)

*See Uniform Sales Act, Section 51.

Seller's Lien.—When the title has passed to the buyer, but the seller has retained possession, he, the seller, has a right, unless he has given credit to the buyer, to keep that possession till payment.

This right to retain possession till payment is called a seller's, or vendor's, lien.52* It has nothing to do with .the right of an owner to retain possession of his own goods. It is independent of title. Indeed a seller's lien exists only when title has passed out of the seller. Its existence “always presupposes that title to the goods has passed to the vendee; since it would be an incongruous conception that a vendor might have a lien on his own goods."158

The seller's right of continued possession, until payment, is effective even against a purchaser for value from the original buyer.54

90; Manufacturing Co. v. Cereal "The term lien imports, that by Co., 124 Iowa 737.

the contract of sale, and a formal As analogous issues in cases symbolical or constructive delivnot involving sales, Wolf v. Marsh, ery, the property has vested in the 54 Cal. 228; Hosmer v. Wilson, 7 vendee; because no man can have Mich. 294; Chapman v. Kansas a lien on his own goods. The very City R. R., 146 Mo. 481; Burtis definition of a lien is, a right to V. Thompson, 42 N. Y. 246; Frost hold goods, the property of anv. Knight, L. R. 7 Ex. 111; Inch- other in security for some debt, bold v. Western etc. Co., 17 C. B. duty or other obligation. If the (n. 8.) 733; Ford v. Tiley, 6 B. & holder is the owner the right to Co. 325.

retain is a right incident to the Contra, Daniels v. Newton, 114 right of property * Mass. 530; King v. Waterman, 55 This is not, however, always Neb. 324.

kept clearly in mind by some 52—Conrad V. Fisher, 37 Mo. courts, with a resultant confusion Ap. 353, 382; Burke v. Dunn, 117 of idea. See Post, p. 114. Mich. 430; Hoskins v. Warren, 54—McElwee V. Metropolitan 115 Mass. 514; Perrine v. Barnard, Lumber Co., 69 Fed. 302; Robinson 142 Ind. 448; Sparger v. Huffman, v. Morgan, 65 Vt. 37; Vogelsang's 15 Ky. L. R. 848; Cragin v. O'Con- Admr. v. Fisher, 128 Mo. 386; nell, 63 N. Y. 1071.

Ware River R. R. Co. v. Vibbard, 53–-Conrad V. Fisher, 37 Mo. 114 Mass. 447; R. R. Co. v. Plant, Ap. 352, 8 L. R. A. 147; Perrine 45 Mo. 517; Perrine v. Barnard, V. Barnard, 142 Ind. 448; Arnold 142 Ind. 448; Dixon v. Yates, 5 V. Delano, Cush. (Mass.) 33, B. & Ad. 313.

*See Uniform Sales Act, Section 54, (1).

Effect of Loss of Possession. There is no seller's lien, however, unless the title has passed to the buyer without a transfer of possession. That is to say, the right to keep possession of the goods until payment depends upon the fact that the seller has already steadfastly retained possession despite the change of title. By delivering actual possession of the goods to the buyer the seller loses his right to any further possession, whether he has been paid or not.56

But delivery of mere constructive possession to the buyer does not affect the seller's lien. If he has retained the actual possession, his right to continue in possession is not impaired. In Woodland Co. v. Mendenhall,66 for instance, the seller sold copper wire to the defendant and strung the wire on the defendant's poles. The seller Company, however, was operating the defendant's railroad at the time and therefore had physical possession of the defendant's poles and other property. The court accordingly said that while constructive possession of the wire might have passed to the buyer by virtue of attachment to its poles, yet as the poles themselves were in the actual possession of the seller, the actual possession of the wire had also been retained by the seller and therefore its seller's lien still existed. In another case67 the plaintiff had sold to one Dewey a number of barrels of whiskey then stored in a bonded warehouse. As part of the contract plaintiff was obliged to ship the whiskey to the buyer when and as ordered. Notice of the sale was given to the warehouse man and he thereupon certified that he held the whiskey for the buyer, Dewey, as owner. The court held that even under these circumstances Dewey had acquired only a constructive possession and not an actual one.58 *

55-Haskins v. Warren, 115 Mass. 514; Sparger v. Huffman, 15 Ky. L. R. 848; Meyers v. McAllister, 94 Minn. 510; Pickett v. Bullock, 52 N. H. 254, "Possession is not only essential to the creation, but also to the continuance of a lien; and when the party voluntarily parts with the possession of the property upon which

the lien has attached, he is devested of the lien."

Statutes in some states provide for certain rights of repossession by the seller even after he has transferred possession. See Jones, Liens.

56482 Minn. 483.

57–Mohr v. Boston & Albany R. R. Co., 106 Mass. 67.

Whether or not there has been an actual delivery of possession to the buyer, as distinct from a merely constructive one, has been said to be a question of fact for the jury if the facts from which it is to be determined are themselves uncertain.69 The great majority of courts, however, treat it, without comment, as a question to be decided by the court itself.

-Delivery to Carrier.—Since a carrier to whom goods have been given for transportation is treated as the agent of the buyer in so many ways, such as to assent to the passing of title and as to make the buyer liable for goods sold and delivered, it is a logical assumption that by delivery to a carrier, without express restriction, the seller loses his lien. The seller would have parted with possession, not merely constructively, but actually, to an agent of the buyer. The case would rarely arise in practice, however. The fact that goods were

58—The seller's lien is not lost dee, it is only because of the mani. "by any species of constructive fest intention of the vendor utterdelivery, so long as he (the seller) ly to abandon all claim and right retains the actual custody of the of possession, taken in connection goods, either by himself, or by with the difficulty or impossibility his own agent or servant", Con- of making an actual and manual rad v. Fisher, 37 Mo. Ap. 352, 8 transfer, that such a delivery is L. R. A. 147, citing many author- considered as sufficient to annul ities. McElwee v. Metropolitan the lien of the vendor." Miles v. Lumber Co., 69 Fed. 302; Arnold Gorton, 2 C. & M. 504, goods stored V. Delano, 4 Cush. (Mass.) 33; by seller at buyer's cost. Vogelsang's Admr. v. Fisher, 128 Delivery of negotiable wareMo. 386; Thompson v. Baltimore house receipts so far passes pos& Ohio R. R., 28 Md. 396, 407, “In session to the buyer as to preclude all cases of symbolical delivery, & lien in the seller, Rummel V. which is the only species of con- Blanchard, 216 N. Y. 348. structive delivery sufficient to 59—Conrad v. Fisher, 37 Mo. give a final possession to the ven- Ap. 352.

*See Uniform Sales Act, Section 54, (2).

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