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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. 8.) 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 Ký. L. R. 550; Moody v. Brown, 34 Me. 107; Tufts

v. Grewer, 83 Me. 407; Jones v. Jennings Bros., 168 Pa. 493; Ridg. ley 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. Tag. gart, 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. 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."182

... The

212-64 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 re. cover 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.

24

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.

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. 26

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. 25-Ames v. Moir, 130 Ill. 582. 43; Kinkead v. Lynch, 132 Fed.

26–Moline Scale Co. v. Beed, 692; Krebs Hop Co. v. Livesley, 59

52 Iowa 307. Ore. 574; Range Co. v. Mercantile Co., 120 Mo. Ap. 438; Van Brock

27-Crown Vinegar & Spice Co. len v. Smeallie, 140 N. Y. 70; Com.

v. Wehrs, 59 Mo. Ap. 493; Walker stock v. Price, 103 Ill. Ap. 19;

v. Nixon, 65 Mo. Ap. 326. Magnes v. Sioux City Co., 14 Colo. Walker Bros. v. Daggett, 115 Ap. 219; Trunkey V. Hedstrom, Miss. 657, 76 So. 569. 131 Ill. 204, action in damages by Osgood v. Skinner, 211 Ill. 229; buyer for seller's failure to de- Rosetter v. Reynolds, 160 Ind. 133; liver.

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.

same

Iowa 340; Busch v. Stromberg. ered delivery; and that the offer Carlson Co., 226 Fed. 200.

to deliver was tantamount to de. It is so provided by statute in livery. The contract, being an some states.

agreement for a thing not yet in The cases of Frisch v. Wells, existence, was, the court said, in 200 Mass. 429; Bond v. Bourk, 54 accord with the New York rule, Colo. 51, and Smith v. Aldrich, 180 not a contract of sale but one for Mass. 367, seem to have been de- work and labor. The work and cided on the principle that the labor having been performed the seller could treat title as being in plaintiff was entitled to the conthe buyer without his consent. The tract price. It was not necessary,

result might have been the court added, for the plaintiff reached, however, more harmoni. to have declared for goods barously upon the principle of a gained and sold. It is only after promise to pay before title passed, this ruling that the court remarks as set out below.

that “where there has been a valid The cases of Bement v. Smith, contract of sale, the vendor is en15 Wend. 493 and Shawhan v. Van titled to the full price, whether the Nest, 25 O. S. 490, 18 Am. Rep. vendee receive the goods or not. 313, are often treated as author- I can not see why the same prin. ities for the proposition that a ciple is not applicable in this seller may sue for the purchase case." The quid pro quo which price even though the buyer has entitled the plaintiff to the debt refused to accept the title. In the was thus obviously not the transformer case (and the latter is sub- fer of the title, but the actual per. stantially the same) plaintiff con- formance of agreed labor. This tracted to build for the defendant interpretation is strengthened by a sulky according to certain de- Higgins v. Murray, 73 N. Y. 252. scription, for a price of $80. When This was a contract to manufacthe work was done and the sulky ture circus tents. When they were offered to the defendant he re- completed and offered to defendfused to receive it. The plaintiff ant he refused to accept them. thereupon stored it with a neigh- The maker sued to recover the bor for the defendant, and brought price. (4 Hun. 565) The court suit for the $80.00. His declara- held the contract to be one for tion contained a count for work work and labor (which would, and labor and one for goods sold. therefore, be a quid pro quo for The defense was that he was en- the debt) and that, consequently, titled to damages only. The posi- the right to recover the price "did tion taken by the court was simply not” depend on where the techthat the plaintiff had agreed to nical title is, as "in the sale of make and deliver a certain thing goods." and that he had made it and tend

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