security for the price, it is held that on his failure to do so his right to the credit is lost and the seller may sue immediately for the price.17 364. Limitation of Actions.-The statute of limitations does not begin to run against an action to recover the price of goods sold and delivered until the price becomes due and payable.18 A complaint for the purchase price based on the express contract may be amended by setting up a cause of action based on a quantum meruit or quantum valebant, but in such a case if the statute of limitations has run at the time the amendment is sought against the latter form or cause of action, the contract of sale not having been complied with by the seller, the amendment will not relate back to the commencement of the action.19 365. Form of Action.-It was said by Lord Holt to be the act of a very bold man who first declared in indebitatus assumpsit generally for goods, etc., sold and delivered. This, however, at an early date became a recognized well established remedy for the recovery of the price of goods, wares and merchandise sold and delivered,20 and to authorize resort to this form of action it is not necessary that a certain price be expressly agreed on. If a promissory note is given for the price, indebitatus assumpsit may be maintained on the note, as a note standing alone presents a contract perfect in all its parts and competent to sustain an action at law unsupported by any other fact. Where there has been no delivery but the title has passed, the form of action should be for goods bargained and sold and not for goods sold and delivered, as the latter form of assumpsit requires that there should have been an actual delivery and acceptance. Indebitatus assumpsit will not, however, lie to recover the price of all kinds of personal property. Thus it is held that this form of action will not lie for the fixtures of a house; and it is also held that the remedy is not an appropriate one for the recovery of the price of a growing crop 17. Pasha v. Bohart, 45 Mont. 76, A. S. R. 86, 57 L.R.A. 225; Jenkins 122 Pac. 284, Ann. Cas. 1913C 1250 v. Richardson, 6 J. J. Marsh. (Ky.) (credit conditional on giving "bank- 441, 22 Am. Dec. 82; Lewis v. Culable note"); Foster v. Adams, 60 Vt. bertson, 11 Serg. & R. (Pa.) 48, 14 392, 15 Atl. 169, 6 A. S. R. 120. Am. Dec. 607; Eckel v. Murphy, 15 Pa. St. 488, 53 Am. Dec. 607. Note: 12 L.R.A.(N.S.) 181. 18. Parke v. Foster, 26 Ga. 465, 71 Am. Dec. 221. See LIMITATION OF ACTIONS, vol. 17, p. 748 et seq., as to when the period of limitation commences generally. 19. Meinhausen V. A. Gettelman Brewing Co., 133 Wis. 95, 113 N. W. 408, 13 L.R.A. (N.S.) 250. See LIMITATION OF ACTIONS, vol. 17, p. 814 et seq. 20. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 51 Atl. 305, 94 1. Jenkins v. Richardson, 6 J. J. Marsh. (Ky.) 441, 22 Am. Dec. 82. 2. Eckel v. Murphy, 15 Pa. St. 488, 53 Am. Dec. 607. 3. Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A. (N.S.) 807. See supra, par. 356, as to necessity for delivery and acceptance to authorize an action for the price. 4. Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241. though such crops are to some extent regarded as personal property. Where the agreement is to pay in commodities or other personal property at a valuation, the action for the failure of the buyer to pay in accordance with his agreement should be on the special contract and not in indebitatus assumpsit for goods sold and delivered. Where the seller is in default in delivering all of the goods sold or agreed to be sold, but has delivered a part, which have been accepted and retained by the buyer, though he cannot recover on the special contract, he may according to the view taken in some cases, even though the contract is entire, recover on a quantum valebant for the reasonable value of those delivered subject to deductions for the damages accruing to the buyer from the failure fully to perform the contract.7 9 366. Complaint in Action for Price.-In indebitatus assumpsit it is not necessary to state the particular goods sold and delivered and indeed to do so would in case of a long account swell the record to an enormous size. A complaint at common law which avers that the defendant is indebted to the plaintiff in a certain sum for goods sold and delivered to him at his request, and that the defendant has not paid for the same, states a good cause of action, although it does not aver a promise to pay, nor state the value of the goods; and under the code form of pleading it was early established as a general rule that the common form of complaint in general assumpsit for goods sold and delivered was sufficient. 10 Under such form of pleading a complaint alleging that the defendant is indebted to the plaintiff in a specified sum, for goods sold and delivered by the plaintiff to the defendant at his request, etc., and that there is now "due" to the plaintiff from the defendant a sum specified, for which he demands. judgment, has been held sufficient, as the word "due" in such connection is a sufficient allegation that the price was due and payable.11 A complaint which alleges that the plaintiff sold and delivered to the defendant, at his request, the goods specified at the prices named; that said goods were reasonably worth the amount charged; that the defendant promised and agreed to pay the sum charged within a certain time after the sale and delivery of said goods; and that, though the time limited for such payment has elapsed, no payment has been made, and the said sum is still due is undoubtedly sufficient.12 On 5. Lewis v. Culbertson, 11 Serg. & R. (Pa.) 48, 14 Am. Dec. 607. See CROPS, vol. 8, pp. 356-357, as to the general character of crops as personal or real property. 6. Cummings v. Dudley, 60 Cal. 383, 44 Am. Rep. 58. See infra, par. 736 et seq., as to the general nature and effect of contracts for payment in commodities. 7. See supra, par. 168 et seq. 9. Note: 83 Am. Dec. 69. 11. Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542. 12. Cone Export, etc., Co. v. Poole, the other hand it has been held under the code that a complaint for goods sold and delivered does not state facts sufficient to constitute a cause of action if it merely alleges that the defendant is indebted to the plaintiff in a sum named on an account for goods sold and delivered to him at his request, and omits to state that the goods were sold by the plaintiff to the defendant.18 367. Defenses to Action for Price Generally.-The modern mode of declaring for goods sold and delivered in most general use is to insert general counts, and when the general issue is pleaded, a vast variety of different claims may be put in issue and tried and the effect to be given to the judgment in such a case as a bar to another action is to consider it as prima facie evidence of a prior adjudication of every demand which might have been drawn into controversy under it, leaving it, like other prima facie evidence, to be encountered and controlled by any other competent evidence tending to show that any particular demand was not offered or considered. 14 As a general rule want of title in the seller is not available as a defense to an action for the price if the buyer has retained the possession,15 and a fortiori when the buyer purchases with knowledge of the seller's want of title to the subject matter he cannot set up such want of title as a bar to an action for the price,16 and as is shown later a warranty of title is not deemed broken, according to the better view, so long as the buyer is not disturbed in his possession of the subject matter of the sale so as to render it available even by way of recoupment.17 So the buyer cannot require the seller and a third person claiming title to the property to interplead to determine which in fact owned the property.18 If the article is not entirely worthless and for such reason insufficient to support the promise to pay the price,19 it is the general rule that in the absence of fraud or warranty the unsoundness or want of intrinsic value provided the buyer gets what he in fact purchased is no defense to an action for the price, as this merely goes to 41 S. C. 70, 19 S. E. 203, 24 L.R.A. 289. The court in this case said that if a complaint in this form is not sufficient it is at a loss to conceive what would be sufficient. 13. Pioneer Fuel Co. v. Hager, 57 Minn. 76, 58 N. W. 828, 47 A. S. R. 574. 14. Bridge v. Gray, 14 Pick. (Mass.) 55, 25 Am. Dec. 358. See generally, JUDGMENTS, vol. 15, p. 949 et seq., as to the general effect of a judgment as a bar to a subsequent action. 15. Duncan v. Stewart, 25 Ala. 408, 60 Am. Dec. 527; Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 A. S. R. 204; Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39; Case v. Hall, 24 Wend. (N. Y.) 102, 35 Am. Dec. 605 and note. As to when warranty of title will be implied, see infra, par. 454 et seq. 16. Baker v. Page, 11 Me. 381, 26 Am. Dec. 540. 17. See infra, par. 506. As to recoupment of damages for breach of warranty, see infra, par. 373. 18. Notes: 35 Am. Dec. 705; 10 L.R.A. (N.S.) 753. As to the necessity for privity of title or interest in case of interpleader, see INTERPLEADER, vol. 15, p. 224. 19. As to the value of an article as affecting its being the subject matter of a sale, see supra, par. 52. the adequacy of the consideration for the promise to pay.20 As said by the federal supreme court, "where an article is on sale in the market, and there is no fraud on the part of the seller, and the buyer gets what he intended to buy, he is liable for the purchase price, though the article turns out to be worthless." 1 The abolition of slavery subsequent to the sale of a slave was held to constitute no defense to an action for the price; 2 and a state statute enacted after the abolition of slavery denying the right to recover for the price of slaves theretofore sold was held to be unconstitutional as impairing the obligation of contracts. In case of conditional sales under which title is retained until the price is paid, it is the general rule that the accidental destruction of the property, while in the hands of the buyer, is no defense to an action for the unpaid part of the price.* 368. Inconsistent Defenses.-As in other cases, a buyer cannot plead inconsistent defenses in an action for the price of goods sold and delivered. This rule excluding inconsistent defenses applies only where the defenses relied on are so repugnant in law or fact that one or the other must of necessity give way. Thus an answer setting up a breach of warranty as to quality and also that the sale was induced by fraudulent representations is not subject to objection for inconsistency, as both pleas might be true; and it has been held that a defense of accord and satisfaction or payment by turning over other personalty in satisfaction of the price is not inconsistent with a defense by way of recoupment for damages for a breach of warranty, as the buyer has the right to pay or satisfy the price and still retain his claim for damages for breach of warranty.8 So the defenses that the property was never delivered and fraud on the part of the seller are not inconsistent, and the same has been held true as to the defense of recoupment of damages for breach of warranty or fraud and in 20. Osborn v. Nicholson, 13 Wall. 654, 20 U. S. (L. ed.) 689; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; Eagan v. Call, 34 Pa. St. 236, 75 Am. Dec. 653; Richardson v. Carlis, 26 S. D. 202, 128 N. W. 168, Ann. Cas. 1913B 47. 1. Osborn v. Nicholson, 13 Wall. 654, 20 U. S. (L. ed.) 689. 2. White v. Hart, 13 Wall. 646, 20 U. S. (L. ed.) 685; Osborn v. Nicholson, 13 Wall. 654, 20 U. S. (L. ed.) 689; Roundtree v. Baker, 52 Ill. 241, 4 Am. Rep. 597. 3. White v.. Hart, 13 Wall. 646, 20 U. S. (L. ed.) 685; Osborn v. Nicholson, 13 Wall. 654, 20 U. S. (L. ed.) 689. 4. See infra, par. 788. 5. Notes: 48 L.R.A. 196; Ann. Cas. 1917C 728. See PLEADING, vol. 21, pp. 472-475, as to inconsistent defenses generally. 6. Helwig v. Lascowski, 82 Mich. 619, 46 N. W. 1033, 10 L.R.A. 378. Notes: 48 L.R.A. 196; Ann. Cas. 1917C 727. 7. Notes: 48 L.R.A. 196; Ann. Cas. 1917C 727. 8. Helwig v. Lascowski, 82 Mich. 619, 46 N. W. 1033, 10 L.R.A. 378. As to waiver of claim for breach of warranty generally, see infra, par. 515 et seq. 9. Notes: 48 L.R.A. 196; Ann. Cas. 1917C 727. bar that the seller exercised his right of rescission for such breach.10 The plea of nonassumpsit or the general issue, and the plea of payment, statute of limitations or discharge under the bankruptcy or insolvency laws are not inconsistent.11 So in an action by the buyer to recover back the price paid on the ground of a breach of warranty and the exercise of his right to rescind therefor, a general denial and the defense that any warranty given was special and conditional are not inconsistent.12 369. Countermand of Order by Buyer.-Where the contract of sale is executory wholly, no title having passed to the buyer before his repudiation or countermand of the contract or order, it seems to be the general rule that the seller cannot go on with performance on his part so as to put himself in a position to make delivery and after the subsequent tender sue for the agreed price but is limited to his action for damages for breach of the contract,18 though in some cases the view has been taken that the seller, notwithstanding such repudiation or countermand, may consider the contract as still subsisting and on a tender in accordance therewith may maintain an action for the price.14 Thus it is the general rule that where goods are ordered to be shipped to the buyer at a future day and before delivery to the carrier the buyer countermands the order, the seller cannot ship the goods and recover the agreed price.15 So ordinarily where the con 10. Notes: 48 L.R.A. 196; Ann. Cas. 1917C 727. As to the right of the buyer to rescind for breach of warranty, see infra, par. 568 et seq., and for fraud, infra, par. 645 et seq. 11. Note: Ann. Cas. 1917C 727. 12. Andrews v. Hensler, 6 Wall. 254, 18 U. S. (L. ed.) 737. Notes: 33 A. S. R. 792 et seq.; 94 A. S. R. 120; 52 L.R.A. 244 et seq.; 17 L.R.A. (N.S.) 808; 26 L.R.A.(Ń.S.) 248; 51 L.R.A. (N.S.) 751. See supra, par. 234 et seq., as to an anticipatory breach of contracts of sale and the general right of the buyer to stop performance of the contract by the seller subject only to liability for damages. 13. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 42 S. E. 378, 94 A. S. R. 112, 59 L.R.A. 122; Moline Scale 14. Note: 51 L.R.A. (N.S.) 751, 756. Co. v. Beed, 52 Ia. 307, 3 N. W. 96, 15. Oklahoma Vinegar Co. v. Cart35 Am. Rep. 272; Fairbanks-Morse, er, 116 Ga. 140, 42 S. E. 378, 94 A. S. etc., Co. v. Heltsley, 135 Ky. 397, 122 R. 112, 59 L.R.A. 122; Fairbanks Co. S. W. 198, 26 L.R.A. (N.S.) 248; v. Heltsley, 135 Ky. 397, 122 S. W. White v. Solomon, 164 Mass. 516, 42 198, 26 L.R.A. (N.S.) 248; Funke v. N. E. 104, 30 L.R.A. 537; McCormick Allen, 54 Neb. 407, 74 N. W. 832, 69 Harvesting Mach. Co. v. Balfany, 78 A. S. R. 716; Trinidad Asphalt Mfg. Minn. 370, 81 N. W. 10, 79 A. S. R. Co. v. Buckstaff Bros. Mfg. Co., 86 393; Funke v. Allen, 54 Neb. 407, 74 N. W. 832, 69 A. S. R. 716; Hart-Parr Neb. 623, 126 N. W. 293, 136 A. S. Co. v. Finley, 31 N. D. 130, 153 N. W. R. 710; Hart-Parr Co. v. Finley, 31 137, L.R.A.1915E 851; Acme Food N. D. 130, 153 N. W. 137, L.R.A. Co. v. Older, 64 W. Va. 255, 61 S. E. 1915E 851; Unexcelled F. Works Co. 235, 17 L.R.A. (N.S.) 807; Lincoln v. v. Polites, 130 Pa. St. 536, 18 Atl. Charles Alshuler Mfg. Co., 142 Wis. 1058, 17 A. S. R. 788 475, 125 N. W. 908, 28 L.R.A. (N.S.) 780. Note: 51 L.R.A. (N.S.) 755 |