373. Horst v. Roehm stated. - In that case, Roehm entered into "ten simultaneous contracts, each for the purchase of 100 bales of hops," to be delivered during a period of five years, and to be paid for by him, ten days after delivery, at twentytwo cents per pound. He received and paid for 600 bales delivered in 1893, 1894, and 1895, but in June, 1896, notified Horst Brothers, the sellers, that he would not take any more hops from them, but would purchase from other parties. The sellers tendered a shipment in October following, which Roehm refused to receive, whereupon the sellers sued to recover damages for Roehm's breach of his contract. The trial court found that, at the time of the defendant's refusal to receive the October shipment, the plaintiffs could have made sub-contracts for forward delivery, according to the contracts in suit, at the price of nine cents a pound for the crop of 1896, and of eleven cents a pound for the crop of 1897, and gave judgment for the differences between the price fixed by the contracts sued on and the prices above stated, together with interest on the sum of such differences from the date of defendant's rejection of the October shipment to the date of the decision; in all, $10,118.30.

This judgment was sustained by the Circuit Court of Appeals and by the Supreme Court. It was held that the plaintiffs were justified in accepting the defendant's declarations as an anticipatory breach of the unperformed provisions of the contract, and were not obliged to make further tenders, nor wait until the expiration of the time for making the latest deliveries under it, before bringing their suit; that the right to begin an action carries with it the right to obtain judgment, and that the proper measure of damages was applied by the trial court. The objection of the defendant that he was entitled to the benefit of the market, at each due date of delivery, was declared untenable, as was the further objection, that the judgment gave to the plaintiffs the use of the money before the date called for by the contract. By the defendant's own acts an earlier ascertainment of damages was made necessary, Neb. 623; 126 N. W. 293 (1910); Livesley v. Krebs Hop Co., 57 Ore. 352; 97 Pac. 718; 107 Pac. 460; 112 Pac. 1 (1910).

and he, it was said, could not complain of a result caused by his own wrongdoing.1

373 (a). Buyer's Breach not amounting to Repudiation. When the sale is on credit, and payment is to be made by negotiable paper due at the expiration of the credit, the buyer's failure to give such paper is a clear breach of his contract. As we have seen, this may be treated by the seller as a breach of the condition of passing title.2 If he waives the condition and permits the buyer to take title, the breach gives the seller an immediate right of action, which, under modern authorities, it is submitted, may be for the purchase price; though, formerly, the action must have been brought for the breach of the special agreement.*

374. Interest on the Agreed Price. This is not recoverable in England, in the absence of a contract for its payment, unless the price "is payable by virtue of some written instrument at a certain time." 5 In Scotland and in this country interest on the price is recoverable from the date when the price should have been paid. If the action, however, is for damages for non-acceptance by the buyer, and these are unliquidated, interest is not allowable in some of our jurisdictions, while it is in others.8

1 A valuable criticism of Roehm v. Horst, and other cases which support the doctrine of anticipatory breach of a contract, will be found in 14 H. L. R., pp. 428-441.

2 Supra, ¶ 87.

3 Stocksdale v. Schuyler, 29 N. Y. St. R. 380 (1890); aff'd without opinion, 130 N. Y. 674; 29 N. E. 1034 (1891); Kelly & McLaughlin v. Pierce & Champine, 16 N. D. 234; 112 N. W. 240; 12 L. R. A. N. s. 180, with case note (1907); Stephenson v. Repp, 47 Ohio St. 551; 25 N. E. 803; 10 L. R. A. 620 (1890); Jacquith v. Adams, 60 Vt. 392; 15 At. 169 (1888). Hanna v. Mills, 21 Wend. (N. Y.) 90; 30 Am. Dec. 216 (1839). 3 & 4 Will. IV. ch. 42, § 28; Chalmers' Sale of Goods Act (2d ed.), 91; (7th ed.), 119.

• Brown's Sale of Goods Act (1st ed.), p. 237; White v. Miller, 78 N. Y. 393, 399 (1879); Dickinson Fire, etc. Co. v. F. T. Crowe Co., 63 Wash. 550; 115 Pac. 1087 (1911).

Hewes v. Germain Fruit Co., 106 Cal. 441; 39 Pac. 853 (1895), and supra, ¶¶ 357-363.

8 J. I. Case Plow Works v. Niles & Scott Co. (Wis.), 82 N. W. 568 (1900); Burdick's Cases on Sales, 718; Sullivan v. McMillan, 37 Fla. 134; 19 So. 340 (1896).

§3. Buyer's Duty to take away Goods.

375. Not only is the buyer bound to take title to the goods, but he is also bound to take them away. If he fails to discharge this obligation, within a reasonable time after title has vested in him, "the seller may charge him warehouse room; or he may bring an action for not removing them, should he be prejudiced by the delay."1 Such at least is the rule in England,2 and it has been followed to some extent in this country, although it was rejected in a recent Massachusetts case. According to this decision, if the vendee refuses to take the goods, at least if that refusal is based on the ground that title has not vested in him, owing to the non-conformity of the goods to the contract, he cannot be made liable to the vendor for their care and custody. "If the vendor wishes to avoid the expense of keeping, and at the same time to avail himself of the value of the property, he may sell under an implied agency for the vendee, and sue for the balance above what he obtains after paying the reasonable expenses.' Of course, if title has not vested in the buyer, the seller, in an action for non-acceptance of the goods, cannot recover as a part of his damages any charges for storage, taxes, or the like.5 So, if the seller elects to revest the title in himself, he has no claim for storage charges, in the absence of a "universal custom of trade" according it to him."

376. This right of the seller does not exist until title has passed to the buyer; until this event transpires, "the seller's

1 Greaves v. Ashlin, 3 Camp. 426 (1813).

§ 404.

Sale of Goods Act, § 37; followed by Uniform Sales Act, § 59.

Dibble v. Corbett, 5 Bosw. (N. Y.) 202 (1859); Story on Sales,

• Putnam v. Glidden, 159 Mass. 47; 34 N. E. 81 (1893); cf. Bartholomew v. Freeman, 3 C. P. D. 316 (1878); Burdick's Cases on Sales, 578.

Tripp v. Forsaith Machine Co., 69 N. H. 233; 45 At. 746 (1897); Burdick's Cases on Sales, 729.

• Maddox v. Washburn-Crosby Co., 135 Ga. 539; 69 S. E. 821 (1910).

right is that of an undevested owner;" "it is a contradiction in terms to say a man has a lien upon his own goods.” “The very definition of a lien is a right to hold goods, the property of another, in security for some debt, duty, or other obligation. If the holder is the owner, the right to retain is a right incident to the right of property; if he have had a lien, it is merged in the general property." The seller's lien is not the creature of contract, but is "conferred by the law," although the parties may limit or extend its application by agreement, or may waive it altogether.

3

The condition upon which this right is exercisable are the following: First, The seller must be unpaid in whole or in part. Second, He must be in possession of the goods. Third, The goods must have been sold without any stipulation as to credit, or if credit was given, it must have expired, or the buyer must have become insolvent.4

377. The Unpaid Seller. His right "in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion; and payment or a tender of the price is a condition precedent on the buyer's part, and, until he makes such pay

1 Lickbarrow v. Mason, 6 East, 21, 25 (1793). This contradiction in terms is found not infrequently in the decisions. In Higgins v. Murray, 73 N. Y. 252, 255 (1878), it is said that although the title had not passed from the plaintiff to the defendant, "the plaintiff had a lien upon the article for the value of his labor and materials." In Bank v. Brown, 80 Kan. 520; 103 Pac. 102 (1909), the court said: "Whether it is more properly described as a lien, a retention of title, or an option to rescind the contract, is not very important."

2 Arnold v. Delano, 4 Cush. (58 Mass.) 33, 38 (1849).

Blackburn on Sales (2d ed.), 447-454. After comparing the rights of an unpaid vendor, as now established, with his rights if they depended on the agreement of the parties merely, the author concludes "the vendor's rights in possession, like his analogous right of stoppage in transitu, owe their origin neither to the common law nor to equity, but to the custom of merchants." See "The Merchants of the Staple," 17 Law Quar. Rev. 56 (1901).

4 Sale of Goods Act, § 41; Uniform Sales Act, § 54. Art. 3227 of La. Civ. Code accords a lien to the seller on movables not paid for, as long as they remain in the purchaser's possession. New Orleans Terminal Co. v. Hanson, 188 Fed. 638; 110 C. C. A. 452 (1911), holding that such lien cannot be enforced extraterritorially. See Carroll v. Swift, 129 La. 43; 55 So. 703 (1911).

As this

ment or tender, he has no right to the possession." right is accorded to the seller by law, in order that he may obtain the purchase price of his goods before parting with them, it continues (unless voluntarily relinquished) until the entire price is paid or tendered. If a portion of the goods has been delivered, the lien for whatever is unpaid attaches to whatever portion is still in the vendor's possession.2

If negotiable paper has been taken as conditional payment, "and the condition on which it was received has not been fulfilled," the seller is deemed unpaid, and is entitled to assert his lien. On the other hand, the unpaid seller's lien is confined to the price of the goods, and does not warrant him in holding them to secure any other claim due to him from the buyer,5 nor does it survive absolute payment or a valid tender of the entire price."

378. Lien accorded to Quasi Vendors. With such favor does the law look upon the rights of one whose money has paid for goods, that it accords a seller's lien to "any one whose position can be shown to be substantially analogous to that of an ordinary seller." Hence, a factor who has paid, or become directly responsible for goods ordered by his princi

1 Bloxam v. Sanders, 4 B. & C. 941, 948 (1825); Burdick's Cases on Sales, 579.

2 Ware River Co. v. Vibbard, 114 Mass. 447, 458 (1874). "It attaches to whatever part of the property may remain within the control of the seller, for the whole amount of purchase-money of the same sale remaining due, payable, and unpaid." Miles v. Gorton, 2 Cr. & M. 504, 512 (1834).

3 Sale of Goods Act, § 38; McElwee v. Metropolitan Lumber Co., 69 Fed. 302 (1895); Burdick's Cases on Sales, 583; Uniform Sales Act, § 52.

• Gunn v. Bolckow, L. R. 10 Ch. App. 491, 501 (1875). "If the bill is dishonored before delivery, then the vendor's lien revives; or if the purchaser becomes openly insolvent before delivery actually takes place, then the law does not compel the vendor to deliver to an insolvent purchaser."

Somes v. British Co., 8 H. L. C. 338, 345 (1860). "No person has by law a right to add to his lien upon a chattel a charge for keeping it till the debt is paid; that is, in truth a charge for keeping it for his own benefit, not for the benefit of the person whose chattel is in his possession." Martindale v. Smith, 1 Q. B. 389 (1841); Burdick's Cases on Sales,

7 Chalmers' Sale of Goods Act (2d ed.), 71, (7th ed.), 97.