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pened is due to his own wrong, still he has not promised to pay the price in the present situation, but must be sued for his breach of contract in preventing the event on which the price would be due from coming to pass. The damages for such a breach would necessarily be diminished by the fact that the vendor still had the title to the goods."

A seller, therefore, who still has title to the goods is not himself entitled to the purchase price. He can sue only for damages for breach of contract, and in such case his damage is not necessarily the agreed price, but is the difference between that price and the market value of the chattel which he still owns. Thus in Acme Food Co. v. Older,20 the defendant had contracted to buy of the plaintiff 6,000 pounds of a certain prepared poultry food. The plaintiff set aside a proper amount for the defendant, but before he could ship it to the defendant-which would, under the established rules, have passed title the defendant repudiated his agreement. The plaintiff shipped nevertheless, but it was held too late then to pass title and although, on defendant's refusal to receive the goods or to pay for them, plaintiff sued for the whole agreed price, his recovery was limited to the difference between the purchase price and the market value.21

20-64 W. Va. 255, 17 L. R. A. (n. s.) 807.

21-Bary v. Quimby, 206 Mass. 259; Internatl. Textbook v. Martin, 166 Mich. 660; Manhattan City R. R. Co. v. Genl. Elec. Co., 226 Fed. 173; Gammage v. Texas, 14 Tex. 413; Funke v. Allen, 54 Neb. 407, overruling a contrary dictum in Lincoln Shoe Co. v. Sheldon, 44 Neb. 249; McCormick Har vesting Co. v. Balfany, 78 Minn. 370, 74 Am. St. 373; Deere v. Gorman, 9 Kan. App. 675; Singer Mfg. Co. v. Cheney, 21 Kỳ. L. R. 550; Moody v. Brown, 34 Me. 107; Tufts

v. Grewer, 83 Me. 407; Jones v. Jennings Bros., 168 Pa. 493; Ridgley v. Mooney, 16 Ind. Ap. 362; Massman v. Steiger, 79 N. J. L. 442, 75 Atl. 746; Atkinson v. Bell, 8 Barn. & Cr. 277; Girard v. Taggart, 5 Serg. & R. (Pa.) 19, "The damages recovered are not the price of the goods sold, but a compensation for the disaffirmance of the contract-Properly speaking, the seller can not recover the price -he recovers damages for the breach of a contract which was entirely executory when it was broken."

But even assuming that the seller's mere promise to pass the title does not create a debt on the buyer's part, a question at once arises as to whether after the buyer's refusal to proceed with the contract, the seller can thrust the title upon him nevertheless, and thus by his own act make himself entitled to the whole sum which the buyer has promised for the title. There is much conflict upon this point, although the best supported rule and the soundest logically is that he can not do so, but is only entitled to recover the damage he has suffered because of the buyer's refusal to take the title.

Thus, in the case of Acme Food Co. v. Older, just referred to,21a the court said of the conflict, "It is sometimes said that the vendor in an executory contract of sale, has, on the refusal of the vendee to accept the property, an election as to whether he will treat it as his own and sue for damages for the breach, or treat it as that of the purchaser and sue for the price. *** The classification of cases made by the text-writers is, in some instances, inaccurate. The writers seem not to have observed in all instances the distinctions and tests above mentioned. In other words, they have frequently classed cases in which the title had passed, or in which there was evidence from which the jury might have found the fact, as cases in which it had not passed. In other instances they have failed to observe that the executory contract had become executed so as to pass the title before any renunciation was made by the vendee. Indeed, there are very few cases in which the seller has been allowed to recover the purchase price when the title to the property had not passed to the buyer. The doctrine of election, when the title has not passed, seems to have grown out of an unfortunate and inaccurate interpretation of certain cases made by Mr. Sedgwick in his work on Damages.''

21a-64 W. Va. 255, 17 L. R. A. (n. s.) 807.

22-See, for supporting author

ity, the cases cited under note 21. "To allow the seller to recover the full purchase price of an

The doctrine of election which the court criticizes and denies, whereby the seller may, if he choose, thrust the title upon the buyer against his will, is, however, widely supported by dicta at least. These authorities declare that a seller who has done all that he is obligated to do by the contract may sue for the purchase price even though the buyer has refused to accept the title. They do not indicate with any certainty whether the seller is allowed to sue on the theory that title has passed to the buyer despite his refusal of it, or on the theory that title need not be in the buyer in such cases. The evidence seems to point to the former.

Very little of this dictum, however, is real authority; that is to say, it is dictum simply. The proposition is usually expressed in some form of the words formulated originally in Dustan v. McAndrew,23 namely, "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."

This statement is widely quoted. As a matter of fact, however, it is seldom the basis of a holding that the seller can sue for the purchase price when the buyer has refused to accept the title. The case in which it was

article, and compel the buyer to accept it whether he wants it or not, is to grant specific performance of a contract for the sale of personal property in favor of the seller, when no such relief could or would be granted in favor of

the buyer. This is against the well established doctrines of courts of equity," from Manhattan City Ry. v. Genl. Elec. Co., 226 Fed. 173.

23-44 N. Y. 72.

thus first stated was not, itself, a suit for the purchase price; it was only an action for damages for breach of contract. Of the two cases cited as authority, one was an action for damages only, and in the other the title had clearly passed, in accordance with the established rules of presumption, and the buyer's refusal was not a refusal to take the title, but to pay the price. This statement of the three possible remedies in cases where it is wholly unrelated to the decision, because the suit is actually for damages for refusal to accept and not for the purchase price, is common. 24

The statement, as wholly extraneous and immaterial matter, is found also in cases in which title has passed according to the established rules, and the buyer's refusal is to receive the goods themselves, not the title, and to pay the price.25

In other cases the extraneous statement is made that recovery of the purchase price would have been allowed, despite the buyer's refusal to accept the title, if something else, such as the seller's failure to make tender, had not been present to prevent it.26

In some cases, however, the statement is actually the principle of the holding, and a seller has been permitted to recover the purchase price for goods sold although title has been refused by the buyer. In other words, he has been allowed to thrust the title upon the buyer and thus entitle himself to the amount of the price.27*

24-Habeler v. Rogers, 131 Fed. 43; Kinkead v. Lynch, 132 Fed. 692; Krebs Hop Co. v. Livesley, 59 Ore. 574; Range Co. v. Mercantile Co., 120 Mo. Ap. 438; Van Brocklen v. Smeallie, 140 N. Y. 70; Comstock v. Price, 103 Ill. Ap. 19; Magnes v. Sioux City Co., 14 Colo. Ap. 219; Trunkey v. Hedstrom, 131 Ill. 204, action in damages by buyer for seller's failure to deliver.

25-Ames v. Moir, 130 Ill. 582. 26-Moline Scale Co. v. Beed, 52 Iowa 307.

27-Crown Vinegar & Spice Co. v. Wehrs, 59 Mo. Ap. 493; Walker v. Nixon, 65 Mo. Ap. 326.

Walker Bros. v. Daggett, 115 Miss. 657, 76 So. 569.

Osgood v. Skinner, 211 III. 229; Rosetter v. Reynolds, 160 Ind. 133; McCormick Co. v. Market, 107

*See Uniform Sales Act, Section 63, (2), (3), 64, (4).

From the foregoing discussion it is apparent that the right of a seller, who has not passed title, to sue for the purchase price in case the buyer refuses to take title is not settled either way.

Iowa 340; Busch v. StrombergCarlson Co., 226 Fed. 200.

It is so provided by statute in some states.

The cases of Frisch v. Wells, 200 Mass. 429; Bond v. Bourk, 54 Colo. 51, and Smith v. Aldrich, 180 Mass. 367, seem to have been decided on the principle that the seller could treat title as being in the buyer without his consent. The same result might have been reached, however, more harmoniously upon the principle of a promise to pay before title passed, as set out below.

The cases of Bement v. Smith, 15 Wend. 493 and Shawhan v. Van Nest, 25 O. S. 490, 18 Am. Rep. 313, are often treated as authorities for the proposition that a seller may sue for the purchase price even though the buyer has refused to accept the title. In the former case (and the latter is substantially the same) plaintiff contracted to build for the defendant a sulky according to certain description, for a price of $80. When the work was done and the sulky offered to the defendant he refused to receive it. The plaintiff thereupon stored it with a neighbor for the defendant, and brought suit for the $80.00. His declaration contained a count for work and labor and one for goods sold. The defense was that he was entitled to damages only. The position taken by the court was simply that the plaintiff had agreed to make and deliver a certain thing and that he had made it and tend

ered delivery; and that the offer to deliver was tantamount to delivery. The contract, being an agreement for a thing not yet in existence, was, the court said, in accord with the New York rule, not a contract of sale but one for work and labor. The work and labor having been performed the plaintiff was entitled to the contract price. It was not necessary, the court added, for the plaintiff to have declared for goods bargained and sold. It is only after this ruling that the court remarks that "where there has been a valid contract of sale, the vendor is entitled to the full price, whether the vendee receive the goods or not. I can not see why the same principle is not applicable in this case." The quid pro quo which entitled the plaintiff to the debt was thus obviously not the transfer of the title, but the actual performance of agreed labor. This interpretation is strengthened by Higgins v. Murray, 73 N. Y. 252. This was a contract to manufacture circus tents. When they were completed and offered to defendant he refused to accept them. The maker sued to recover the price. (4 Hun. 565) The court held the contract to be one for work and labor (which would, therefore, be a quid pro quo for the debt) and that, consequently, the right to recover the price "did not" depend on where the technical title is, as "in the sale of goods."

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