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would have been put to had the buyer not broken the contract, in such case the seller is not damaged by the breach to the full amount of the difference between the contract price and the resale value, but to that amount less the expense saved. This saving of expense should be deducted from the difference.

-Ascertaining Damage. It being established that the seller's damage is the difference between the agreed price and the amount he can get for the chattel otherwise, the question is how the latter amount shall be ascertained. This is a matter of evidence. Anything that reasonably and properly tends to show the market value may be given in evidence.

If no evidence at all is given, the presumption is that the market value and the contract value are the same and the damage awarded will, therefore, be merely nominalsix cents, or any other small sum awarded for the sake of carrying costs in the suit in the plaintiff's favor.5

On the other hand it might be that the chattel contracted for has no monetary value, no saleability to anyone else at all. In such a case the actual loss to the seller through the buyer's breach of contract, being the difference between what the buyer agreed to pay and the monetary value of the chattel to the seller, which is nothing, would be the full amount of the contract price.

If it happens that the market value at the time of breach was in fact higher than the contract price, and the seller has elected to treat the contract as broken, and has resold at the higher price, the buyer is, of course, not entitled to the surplus. The goods were not his—he having refused to accept the title—so that he would have no right to any part of the resale price on that ground, and, having broken the contract, he can not thereafter elect to enforce it.?

4-Newark City Ice Co. v. Fisher, 76 Fed. 427.

S. 867; International Textbook
Co. v. Schulte, 151 Mich. 149.

6-Manhattan City, etc. Ry. Co. v. Genl. Elec. Co., 226 Fed. 173; Wells v. Maley, 5 Ky. L. Rep. 77.

6—Tufts v. Bennett, 163 Mass. 898; Petigor V. Ward, 74 N. Y.

It is not obligatory for the seller to resell the chattel if he can furnish satisfactory proof of its actual monetary value at the time of breach in some other way.8 Indeed, in the case of a contract of sale of goods to be manufactured and a repudiation by the buyer before their completion the seller is not expected to continue the work. It is not even permissible for him to do so.10

If the seller does elect to retain the goods as his own and to prove their market value in some other way, the fact that he subsequently resells the goods will not in any way affect his recovery of the difference between the contract price and the market value at the time of breach. If, for instance, the market value at the time of his eventual resale should be higher than the contract price, he would still be entitled to the difference between the market value at the time of breach and the contract

price. 11

-Resale to Demonstrate Damage.-If he does choose to make a resale, and if he makes it within a reasonable time after breach, at the nearest available market, by public auction, and after actual or constructive notice to the buyer, so that the latter may protect himself by being present, then the amount realized at such sale will be accepted by the courts as conclusive evidence of the market value.18

S. W. 188; Bridgeford v. Crocker, 60 N. Y. 627.

7-Warren v. Buckminster, 24 N. H. 336.

8-Barrett v. Verdey, 93 Ga. 526; Hewes v. Germain Fruit Co., 106 Cal. 441; Kellog v. Frolich, 139 Mich. 612.

9–Gardner v. Deeds, 116 Tenn. 128, 4 L. R. A. (n. s.) 740.

10-Heiser v. Mears, 120 N. C.

12—Davis Sulphur Ore Co. v. Atlantic Co., 109 Ga. 607; Hewes v. Germain Fruit Co., 106 Cal. 441; Carriage Co. v. Gilmore, 123 Mo. Ap. 19; Fox v. Woods, 96 N. Y. S. 117, even though the resale was private instead of at public auction; Van Brocklen v. Smeal. lie, 140 N. Y. 70, private sale; Pollen v. LeRoy, 30 N. Y. 549,


11-Sour Lake Townsite Co. v. Deutser Furniture Co., (Tex.) 94

But even if the seller does not give notice of resale, or otherwise observe all the strict requirements, the price actually secured by the resale is not absolutely rejected as evidence. Only its weight is affected. Inasmuch as

. the seller does not need to make a resale at all in order to fix his damages, if he can furnish other evidence, it naturally follows that he can resell or otherwise dispose of his property in any way he, as owner, sees fit. The only limitation upon this right of disposal is the obviously fitting one that the amount secured by the resale will not be accepted as conclusive evidence of the real market value unless the resale was made under such circumstances as to indicate that the amount received was in fact the market value. As one court put it, “The sale, in such circumstances, is but a method, as before indicated, of enforcing a right to damages for breach of contract, and of making evidence of the precise amount of such damages.

*** If he sues for his damages without selling the property or without selling the same with proper regard to the rights of the executory vendee, he takes upon himself the burden of establishing the fair market value of the goods at the time of the breach. So it is said that notice to the vendee of the vendor's intention to make the sale, and the sale, with proper regard to the interests of the former, merely create definite and conclusive evidence of such market value."'18 The courts, therefore, do not refuse to receive the results of a resale as evidence of the market value merely because it was made without notice, or was a private sale instead of a public one, or was in any respect not conventional. They receive it in evidence, just as any other evidence is


without notice to buyer; Wrigley v. Cornelius, 162 Ill. 92, without notice; Ackerman v. Rubens, 167 N. Y. 405, although seller himself was purchaser at public sale; Nelson v. Hirsch & Sons Co., 102 Mo. Ap. 498, resale made some time after breach, but within a

reasonable time; Black River Lumber Co. v. Warner, 93 Mo. 374, accd.; Magnes v. Sioux City Co., 14 Colo. Ap. 219; McDonald Cot. ton Co. Mayo, Miss. 38 So. 372.

13—Pratt v. S. Freeman & Sons Co., 115 Wis. 648.

received, and subject to the general rules of materiality, relevancy, competency, etc.14 But it will not be received as conclusive evidence unless it appears to have been a fair demonstration, from the point of view of both parties, of the real market value.16*

It must be borne in mind that the foregoing discussion is applied to resales to fix the market value in cases where title is still in the seller. When title has passed from the seller, and he resells, as agent of the buyer, to enforce his seller's lien, other principles apply.16

Recovery of Purchase Price.-A seller who still retains title and possession is limited to this action for damages for breach of contract. He can not sue to recover the amount of the purchase price, as such."7 Various writers

14-Gehl v. Milwaukee Produce III. 92; Ullman v. Kent, 60 Ill. 271; Co., 105 Wis. 573; Carriage McDonald Cotton Co. v. Mayo, Co. v. Gilmore, 123 Mo. Ap. Miss. —, 38 So. 372. 19; Anderson V. Frank, 45 Mo. But other cases require notice Ap. 482; Moore v. Potter, 155 of an intention to resell at least, N. Y. 481; A resale made after Winslow v. Harriman Co., 42 S. suit commenced will not be re- W. 698, semble, as title had ceived in evidence, Hardwick v. passed; Pillsbury Flour Co. v. Can Co., 113 Tenn. 657; Brownlee Walsh, 60 Ind. Ap. 76, 110 N. E. 96; v. Bolton, 44 Mich. 218; Pollen v. Davis Sulphur Ore Co. v. Atlanta LeRoy, 30 N. Y. 549; Am. Hide Co. Co., 109 Ga. 607. v. Chalkley, 101 Va. 458, notice of 15—Case v. Simonds, 7 N. Y. intent to resale is mere evidence Supp. 253; Bigelow V. Legg, 102 relating to market value.

N. Y. 652. Some distinction is made be. 16-See p. 129. tween notice of intention to sell 17—Although, as noted above, and notice of time and place. Some the damages may happen to equal cases hold specifically that even the purchase price. the former is not necessary, The retention of title should not Leeper v. Schroeder, 24 Colo. Ap. be confused with retention of pos. 164; Wallace v. Coons, 48 Ind. Ap. session. As we have already 511; Clore v. Robinson, 18 Ky. L. seen, title may be transferred, and R. 851; Kellogg y. Frolich, 139 usually is, before possession is Mich. 312; and it is generally held passed and even though the buyer that the buyer's refusal puts him has no right to possession till pay. on notice that a resale may be ment. In such case the buyer's made, Wrigley V. Cornelius, 162 refusal to accept the possession of

*See Uniform Sales Act, Section 64, (1), (2), (3), (4).


have pointed out that while an action will lie to recover damages for breach of a contract, even though the consideration for the contract be only a reciprocal promise, an action in debt for a specific sum owing to the plaintiff from the defendant can not be maintained unless the defendant has received something more than a mere promise from the plaintiff.18 Until the seller has passed the title to the buyer, therefore, the latter has received only the seller's promise and the seller is not the owner of the sum agreed to be paid. The broad rule is indubitably that a seller who has not in fact passed the title to the buyer can not sue for any sum which the buyer agreed to

pay for the title, but only for damages resulting from the buyer's refusal to perform his promise. One position of the courts appears to be that no debt on the buyer's part is implied by law in return for the seller's mere promise without other quid pro quo; that the seller does not become the owner of the purchase price and the buyer does not hold it as a debt due the seller until the seller has performed the consideration for which the buyer has promised to pay; that is, until the buyer has become the owner of the property contracted about. Another position is that the buyer has not even undertaken to pay the purchase price until he shall have acquired the title.

Mr. Justice Holmes has expressed the latter idea as a dictum, thus :19 “In an ordinary contract of sale the payment and the transfer of the goods are to be concurrent acts, and if the buyer refuses to accept the goods, even wrongfully, he can not be sued for the price, because the event on which he undertook to pay the price has not happened; and although the fact that it has not hap

the goods will not necessarily affect the title, which is already in him. The seller is entitled to the purchase price regardless of the buyer's refusal to accept possession of the goods themselves.

For a more detailed discussion

of this whole matter see the article in 17 Mich. L. R. 283.

18—Ames, 8 Harvard L. R. 252; Street, Foundation of Legal Liability, Vol. II, ch. 11.

19—White v. Solomon, 164 Mass. 516.

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