estopped to set up his title so that an innocent second purchaser may get the goods is understandable, but not all cases clearly show the essential elements of true estoppel. That is, for a good case of estoppel, it should appear that the second purchaser had knowledge, or reason to believe, that the goods had once been the property of the seller and has therefore purchased in reliance upon that fact, and not merely in reliance upon the present possession which he sees to be in the seller, for that would also cover cases of mere bailment, where this is never so held. But statutes protecting the second purchaser from the original owner who still retains possession, have been so common, and so many of the cases have been decided under such statutes, that it is now difficult to determine the true basis of the decisions. But this much is clear, that the American courts in general have preferred the second purchaser from the vendor in possession, over the first purchaser, and that therefore at the present time, even in the absence of statute on the matter, a buyer must receive delivery of the property in order to be sure that he will get the goods against the claim of a subsequent purchaser.

CHAPTER XIII.

SELLER'S REMEDIES.

91. Goods in buyer's possession.-If the goods have been given into the buyer's possession without fraud on the buyer's part, the seller cannot recover the goods from the buyer, even though he refuses or is unable to pay for them. The goods are now the property of the buyer as much as any other goods which he may own and the seller has no greater claim on the particular goods which he has sold to the buyer than has any other creditor of the buyer. There is a plain and simple debt due the seller no different from the claim of anyone else to whom the buyer is indebted, and he must proceed to collect as any other creditor, and the goods sold are now a part of the general assets of the buyer and are available alike to any of his creditors. The seller's only remedy, therefore, is to bring an action for the price of the goods as agreed upon by the parties and proceed as for a debt contracted in any other way. If fraud has been practiced on the seller which induced him to part with the goods, he may rescind the sale, as has already been explained,78 and recover back the goods so long as they have not passed into the hands of an innocent purchaser who has paid value for them. But if the seller has suffered any damage by the fraud of the buyer which induced the sale, the

78 See Chap. XII, § 82.

seller should, of course, also have an action to recover against the fraudulent party for the injury.

79

92. Goods in seller's possession.-When the goods are retained in the seller's possession he has a lien thereon as has been shown in a previous chapter, and there are three remedies open to him. The situation of the seller was stated by Earl, C., in Dustan v. McAndrew,80 as follows: "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."

93. Where title has not passed-Damages. If there is a valid contract to sell but the title has not yet passed and the buyer fails or refuses to take the goods, there are various remedies open to the seller, not all of which, however, are admitted by all courts.

The seller's most obvious remedy in such a case is an action for damages for the breach of the contract. This is not different in principle or application from any other contract action. The measure of damages to which the seller is entitled upon the

79 Chap. VIII.

80 44 N. Y. 72.

buyer's default is the difference between the price which the buyer was to pay and the value of the goods at the time and place set for performance. This will put the seller as nearly as possible in the same position as if the contract had actually been performed, which should always be the basis upon which damages are assessed by the court.

If, however, the contract price and the market price are the same, or if the market price is higher than the contract price, the seller may still recover nominal damages, for, though the seller has suffered no actual damage, nevertheless the buyer is in default by failing to perform the contract, and the court will give nominal damages, that is, such a small sum as one cent or one dollar, merely to show that the buyer is in default. Thus, the buyer's failure or refusal to take the goods may actually result in a benefit to the seller, if the price of such goods has materially advanced, yet the seller is, nevertheless, entitled to nominal damages, since the buyer is technically in default in not carrying out his agreement.

94. Agreement to pay regardless of passing of title. The buyer may agree that upon the doing of certain acts by the seller he will become bound to pay him a certain sum of money, and this without regard to the question of whether or not title is to pass. If in such a case the seller performs as agreed, he is entitled to the money, it being understood that when the money has been paid, then the title is to be in the buyer, for it would not be fair to allow the recovery of the sum agreed upon as

the full price of the goods, and still leave the seller with the goods also. In White v. Solomons1 the buyer agreed to pay thirty-five dollars upon the delivery of a manikin at the express office, and it was assumed in the case that title was not to pass by such delivery only. The court said, "The buyer has said in terms that although the title does not pass by the delivery to the express company, if it does not, delivery shall be the whole consideration for an immediate debt of the whole value of the manikin, and that the passing of the title shall come as a future advantage to him when he has paid the whole. * * * If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum."

Such decisions as this have been often misunderstood and misinterpreted so that they have been taken as standing for the doctrine that even though the title has not passed, nevertheless the seller might bring action for the purchase price. Some courts do take such a view, as is stated in a later section,82 but the two principles are distinct and separate and should not be confused.

The Sales Acts3 states clearly the law that the payment of the price may be due by the terms of the contract, even though the title has not yet passed, as follows: "Where, under a contract to

81 164 Mass. 516.

82 § 97.

83 § 63 (2).