the legal title, the seller may maintain trover against either the buyer or a third person for the conversion of the subject matter of the sale if his right to retake possession is wrongfully denied.17 And it is the general rule that, if the buyer transfers the property, as distinguished from his special interest therein, to a third person, either by a sale or mortgage, before performance of the stipulated conditions, he makes himself liable for a conversion.18 Likewise the purchaser from or mortgagee of the buyer who takes or attempts to exercise rights in the property inconsistent with the rights of the seller is also guilty of a conversion,19 and it is held that a purchaser in good faith from the buyer, if he sells the property again, is liable for a conversion.20 This, however, presupposes that the purchaser from or mortgagee of the buyer does not acquire title free from the seller's reservation of title. An action of trover may be commenced by the seller at the time the conversion takes place, although the payments under the contract of sale may not have matured. The authorities. are not in accord as to the measure of damages, recoverable by the seller, in trover against one claiming under the buyer. In some cases the view is taken that the seller cannot recover to exceed the amount of the unpaid purchase price; in other cases it is held that the seller may recover the full value of the property. In no case should the seller be permitted to recover more than the value of the

17. Ivers, etc., Co. v. Allen, 101 Me. 218, 63 Atl. 735, 115 A. S. R. 307, 8 Ann. Cas. 128; Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144; Warner Elevator Mfg. Co. v. Capitol Invest., etc., Ass'n, 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473; Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773; Kimball v. Costa, 76 Vt. 289, 56 Atl. 1009, 104 A. S. R. 937, 1 Ann. Cas. 610.

Notes: 133 A. S. R. 568; 32 L.R.A. 460; 8 Ann. Cas. 129.

As to who may maintain an action for conversion of personal property generally, see TROVER.

18. Ivers, etc., Co. v. Allen, 101 Me. 218, 63 Atl. 735, 115 A. S. R. 307, 8 Ann. Cas. 128.

Note: 8 Ann. Cas. 129.

another constitutes conversion, see generally, TROVER. As to the liability of an agent, who sells the property of another, to the latter for conversion, see supra, par. 699.

1. Note: 8 Ann. Cas. 129. See supra, par. 752 et seq., as to the validity generally of the reservation of title in the seller as to purchasers from the buyer.

2. Note: 8 Ann. Cas. 129.

3. Davis v. Bliss, 187 N. Y. 77, 79 N. E. 851, 10 L.R.A.(N.S.) 458; Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773. See also Rose v. Story, 1 Pa. St. 190, 44 Am. Dec. 121.

Note: 10 L. R. A. (N.S.) 458. As to the measure of damages recoverable in trover where the plaintiff has a

19. Woods v. Nichols, 21 R. I. 537, special interest only, see generally, 45 Atl. 548, 48 L.R.A. 773.

Note: 8 Ann. Cas. 129.

20. Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773. As to

TROVER.

4. Angier v. Taunton Paper Mfg. Co., 1 Gray (Mass.) 621, 61 Am. Dec. 436.

when the sale of the property of Note: 10 L.R.A. (N.S.) 459.

property at the time of the conversion, though this is less than the amount of the price unpaid."

782. Remedy of Seller against Buyer's Trustee in Bankruptcy.Where the trustee in bankruptcy of the buyer takes subject to the rights of the seller, the cases recognize the right of the seller to intervene in the bankruptcy proceedings involving the estate of the buyer, and secure an order on the trustee for the return of the property, or for the payment of the balance due on his contract, or, if the property has been sold, an order for the proceeds of the sale if less than the amount due on the price; or the seller may submit to a sale. of the property under the same conditions; that is, that the proceeds of the sale up to the amount due him be paid him by the trustee. And it has been held that, without tendering the unpaid price, the trustee in bankruptcy of the buyer has no equitable standing to prevent the seller from recovering the property under a writ of replevin." If the contract of sale is duly recorded, as required by the state statute, the rights of the seller are fully protected, and he may assert his title in an action of trover against a purchaser of the property at a bankruptcy sale, though the trustee sells the property of the bankrupt free from liens and incumbrances, it not appearing that the seller has done any act which would estop him from such assertion of title; and his mere failure to claim the property or assert his title thereto will not operate as such an estoppel.s

Recovery of Price or Damages for Breach of Contract

783. In General.-If there is no absolute promise on the part of the buyer to pay the price but he is given the optional right to make the payments stipulated for in the contract and thereby acquire title to the subject matter of the sale, he may withdraw from the contract. and avoid any further liability for the price. On the other hand the default of the buyer in paying the price as stipulated does not itself operate as a rescission of the contract, if his promise to pay is absolute, and in such a case it is generally recognized that the seller has the right to recover the price and is not restricted to the right to retake possession. 10 And it is held that a statute providing as regards the

10. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L.R.A. 537; Madison River Livestock Co. v. Osler, 39 Mont. 244, 102 Pac. 325, 133 A. S. R. 558, Francis v. Bohart, 76 Ore. 1, 143 Pac. 920, 147 Pac. 755, L.R.A.1916A 922; International Harvester Co. v. Pott, 32 S. D. 82, 142 N. W. 652, Ann. Cas. 1916A 327; Sing

damages recoverable by a seller for breach of a buyer's agreement to accept and pay for personal property the title of which is not vested in him does not apply to a contract of conditional sale, under which the possession is taken by the buyer, and therefore cannot affect the seller's right to sue for the price.11 It has also been held that the seller may treat his retention of title until the price is paid as in the nature of a lien for the price and sue to enforce such lien.12 Where the contract is for goods to be thereafter produced or manufactured by the seller or shipped to the buyer, the latter has the same right to countermand the order before the goods are manufactured or shipped as in ordinary executory contracts of sale, and thus restrict the seller to his remedy by way of an action for damages for breach of the contract.18

784. Refusal of Buyer to Accept Delivery.-Though the buyer refuses to accept delivery, the seller has been permitted to sue for the price, retaining the property as the property of the buyer, and is not bound to sue merely for damages for the buyer's breach of contract, which would ordinarily be the difference between the agreed price and the value of the subject matter of the sale.14 This, however, presupposes, it would seem, that the rule prevails that the seller in an ordinary executory contract of sale may on the refusal of the buyer to accept delivery sue for the price and is not restricted to an action. for damages for breach of the contract.15 Still, where the contract provides for the payment of the first instalment on delivery of the subject matter to a carrier for transportation to the buyer and that on the failure to pay any instalment when due the entire price shall become due and payable, the seller has been held entitled, on the refusal of the buyer to accept delivery from the carrier and pay the first instalment, to recover the entire agreed price, the liability of the buyer for the price being considered in no way dependent upon the transfer of the title to him, though, in ordinary cases, where the buyer refuses to accept delivery the seller is restricted to an action.

er Mfg. Co. v. Cole, 4 Lea (Tenn.) 439, 40 Am. Rep. 20.

Notes: 133 A. S. R. 563; 32 L.R.A. 458; Ann. Cas. 1917D 464.

11. International Harvester Co. v. Pott, 32 S. D. 82, 142 N. W. 652, Ann. Cas. 1916A 327.

12. Chase v. Kelly, 125 Minn. 317, 146 N. W. 113, L.R.A.1916A 912.

13. Note: 68 L.R.A. 101. See supra, par. 369, as to the effect of a countermand of an order on the buyer's liability for the price generally.

14. National Cash Register Co. v. Hill, 136 N. C. 272, 48 S. E. 637, 68

L.R.A. 100; American Soda Fountain Co. v. Gerrer's Bakery, 14 Okla. 258, 78 Pac. 115, 2 Ann. Cas. 318.

Notes: 68 L.R.A. 101; 51 L.R.A. (N. S.) 759; L.R.A.1916A 921; 16 Ann. Cas. 1057; Ann. Cas. 1917D 467.

As to the measure of damages for breach of contract by the buyer, see supra, par. 386 et seq.

15. Note: 68 L.R.A. 101. As to the right of the seller to sue for the price generally where the buyer refuses to accept delivery, see supra, par. 356 et seq.

for damages for breach of contract by the buyer.16 On the other hand, as in case of an ordinary executory contract, the right of the seller to recover the price is dependent upon the performance by him in good faith of substantially all the requirements on his part. He is not entitled to treat the property as belonging to the buyer and recover the price except in case he has delivered the property, or in good faith tendered it according to the terms of the sale. If there is some condition to be by him performed which must be done before the possession or title can vest in the buyer, then he cannot treat the property as that of the buyer, and a failure on his part to perform such condition will defeat his right of recovery.17

785. Retaking Possession as Affecting Buyer's Liability.-The right of the seller to recover the instalments of the price and his right to retake possession of the subject matter of the sale are regarded as inconsistent, and, after he has exercised his right to retake possession, it is generally held that he cannot recover unpaid instalments of the price, though the promise of the buyer to pay the same was unconditional or was evidenced by notes or the like.18 And where the transaction was in the form of a lease, though treated as a conditional sale, under which the so-called lessee was to pay certain instalments eo nomine as rent, with provision for retaking possession on default in payments, it has been held that the so-called lessor has two remedies: (1) to retake possession as stipulated; (2) to sue for and recover each instalment upon default in its payment; that such remedies are inconsistent, and that a resort to the one is a waiver of the right to resort to the other; and that where the so-called lessee is permitted to retain possession until all the instalments for which notes were given have become payable, the so-called lessor by exercising his right to retake

16. White v. Solomon, 164 Mass. 516, 42 N. E. 104, 36 L.R.A. 537. See also National Cash Register Co. v. Hill, 136 N. C. 272, 48 S. E. 637, 68 L.R.A. 100.

17. American Soda Fountain Co. v. Gerrer's Bakery, 14 Okla. 258, 78 Pac. 115, 2 Ann. Cas. 318.

18. Sanders v. Newton, 140 Ala. 335, 37 So. 340, 1 Ann. Cas. 267; Loomis v. Bragg, 50 Conn. 228, 47 Am. Rep. 638; Peasley v. Noble, 17 Idaho 686, 107 Pac. 402, 134 A. S. R. 270, 27 L.R.A. (N.S.) 216; Turk v. Carnahan, 25 Ind. App. 125, 57 N. E. 729, 81 A. S. R. 85; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L.R.A. 537; Perkins v. Grobben, 116 Mich. 172, 74 N. W. 469, 72 A. S. R. 512, 39 L.R.A. 815; McBryan v. Universal Elevator Co., 130 Mich.

111, 89 N. W. 683, 97 A. S. R. 453; C. W. Raymond Co. v. Kahn, 124 Minn. 426, 145 N. W. 164, 51 L.R.A. (N.S.) 251; Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A. 1916A 912; Madison River Livestock Co. v. Osler, 39 Mont. 244, 102 Pac. 325, 133 A. S. R. 558; Seanor v. McLaughlin, 165 Pa. St. 150, 30 Atl. 717, 32 L.R.A. 467; Kelley Springfield Road Roller Co. V. Schlimme, 220 Pa. St. 413, 69 Atl. 867, 123 A. S. R. 707; Winton Motor Carriage Co. v. Broadway Automobile Co., 65 Wash. 650, 118 Pac. 817, 37 L.R.A. (N.S.) 71; Norman v. Meeker, 91 Wash. 534, 158 Pac. 78, Ann. Cas. 1917D 462.

Notes: 32 L.R.A. 455; L.R.A.1916A 915; 1 Ann. Cas. 268; 16 Ann. Cas. 1057; Ann. Cas. 1917D 465.

possession waives his right to recover the stipulated payments.19 It has also been held, where the seller has taken a judgment bond as collateral security, that he cannot, after retaking possession, enforce such bond. And where the seller after recovery of judgment for the price retook possession, this has been held to relieve the buyer from liability on the judgment, as it destroyed the consideration on which the judgment was founded. Likewise where the price to be paid is in part by the conveyance of real estate, the retaking of possession by the seller defeats his right to have the agreement for the conveyance of the realty specifically enforced. The reason for the nonliability of the buyer for the price is that, when the property is retaken by the seller, there is no longer any consideration for his promise to pay the price, or for the notes given therefor, and therefore the seller cannot bring suit to recover the price or any part thereof. On the other hand the right of the seller to retake possession for the purpose of holding the property as security for the price, without forfeiting the right to recover the price, has been upheld.* The seller may, by an express provision in the contract, retain the right to retake possession and resell the property on account of the buyer and hold him liable for any deficiency in the price. And where a note signed by the buyer and by a third person was intended and taken as the equivalent of a cash payment of the first instalment of the price, the seller has been permitted after retaking possession for a default in the payment of later instalments to enforce the note.6 Still it has been held that a provision that the seller upon the default of the buyer in paying any of the purchase money notes may commence suit upon the same, which shall not be taken as a waiver of the right to retake possession, does not affect the converse of the proposition that the taking of possession is a waiver of any right to sue and recover thercafter upon the notes. Though the seller cannot after retaking possession maintain an action for the price he may treat

19. Kelley Springfield Road Roller 100 Ark. 403, 140 S. W. 582, Ann. Co. v. Schlimme, 220 Pa. St. 413, 69 Cas. 1913C 659, 36 L.R.A. (N.S.) 594. Atl. 867, 123 A. S. R. 707. See also Note: Ann. Cas. 1917D 466. Loomis v. Bragg, 50 Conn. 228, 47 5. See the following paragraph. Am. Rep. 638. 6. Norman v. Meeker, 91 Wash. Notes: 32 L.R.A. 455; L.R.A.1916A 534, 158 Pac. 78, Ann. Cas. 1917D 917.

20. Seanor v. McLaughlin, 165 Pa. St. 150, 30 Atl. 717, 32 L.R.A. 467. 1. Note: L.R.A.1916A 917. 2. Sanders v. Newton, 140 Ala. 335, 37 So. 340, 1 Ann. Cas. 267.

3. McBryan v. Universal Elevator Co., 130 Mich. 111, 89 N. W. 683, 97 A. S. R. 453. 4. Hollenberg Music Co. v. Barron,

462. This is similar to the right of the seller, generally recognized, to retain partial payments made by the buyer though he thereafter asserts his right to retake possession for the default of the buyer as to later instalments. See infra, par. 794.

7. Perkins v. Grobben, 116 Mich. 172, 74 N. W. 4C9, 72 A. S. R. 512, 39 L.R.A. 815.