the default of the buyer as a breach of the contract of purchase, and maintain an action for damages, as in case of the breach of other executory contracts of sale by a buyer. It seems that if the seller elects to retake possession he cannot thereafter recover for the value of a part of the property which was accidentally lost or destroyed while in the possession of the buyer, as in such a case the property is deemed to have been at the seller's risk.9 786. Resale on Account of Buyer; Liability for Deficiency.— Frequently contracts of sale provide that on default of the buyer the seller may retake possession and sell the property on account of the buver crediting him with the proceeds of the resale and hold him liable for any deficiency in the price. Such a provision does not constitute the transaction an absolute sale with mortgage back for the price.10 As a general rule the validity of such a stipulation is given full effect by the courts and the seller is held entitled, after a resale in accordance with the provisions of the contract, to sue and recover any balance remaining after crediting on the purchase price the proceeds of such sale.11 And this effect has been given to a stipulation authorizing the seller to retake possession and resell, as this necessarily implies that the resale shall be on account of the buyer and that any deficiency towards the satisfaction of the price shall be paid by the buyer.12 In some cases, however, the view is taken that even though the contract contains an express provision authorizing the seller to retake possession and resell on account of the buyer, holding him liable for any deficiency, this cannot extend the liability of the buyer for the price if the seller exercises his right to retake possession, on the theory that the promise of payment and the implied obligation to transfer the title are mutual, and as each is the sole consideration for the other the inability or refusal to perform the one will excuse performance as to the other.13 The right of the seller to retake possession and resell the property on account of the buyer and recover any deficiency has been upheld, though the contract contained no express provision giving the seller this right, the court making a distinction as to the liability of the buyer between the case where the seller retakes possession and treats the property as his own. 8. 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. As to the action by the seller for damages generally, see supra. par. 383 et seq. 9. Madison River Livestock Co. v. Osler, 39 Mont. 244, 102 Pac. 325, 133 A. S. R. 558. As to the effect of the accidental destruction of the property on the liability of the buyer for the price, see infra, par. 788. 10. See supra, par. 746. 11. Van Den Basch v. Bouwman, 138 Mich. 624, 101 N. W. 832, 110 A. S. R. 336. Notes: 32 L.R.A. 457; L.R.A.1916A 918; Ann. Cas. 1917D 466. 12. Van Den Basch v. Bouwman, 138 Mich. 624, 101 N. W. 832, 110 A. S. R. 336. 13. Note: L.R.A.1916A 919. and where he resells on account of the buyer.14 This, however, is undoubtedly contrary to the great weight of the authorities which state in general terms that the retaking of possession by the seller releases the buyer from further liability for the price.15 It has also been held that the seller may foreclose his contract in equity as a lien and hold the buyer liable for the deficiency if the amount realized at the sale is inadequate.16 The question as to the right of the seller in ordinary contracts of sale to resell on account of the buyer where the latter refuses to receive and pay for the goods is heretofore treated.17 787. Character of Possession by Seller.-In order that the retaking of possession by the seller may relieve the buyer from further liability for the price, it is necessary, it seems, that his resumption of possession be by virtue of his retention of title, and with the intention to exercise his right as seller.18 Thus if the property is delivered to the seller for repairs, he may hold possession under his repair lien without releasing the buyer from liability for the price.19 In such a case, however, a tender by the buyer of the amount owing for the repairs will terminate the seller's lien therefor and he cannot thereafter justify or excuse his subsequent retention of possession on the ground that he had a lien for the repairs.20 It has also been held where the buyer abandons the property, and the seller takes possession merely to preserve it, that this does not constitute an election of remedies preventing him from recovering the price. The right of the seller to retake possession and hold it as security for the payment of the price without releasing the buyer from liability has been upheld, especially when such right is given by the terms of the contract. 788. Destruction of Property as Affecting Buyer's Liability.-The authorities are not in accord as to the liability of the buyer for the unpaid part of the agreed price where the property is accidentally destroyed while in his possession and without his fault. According to the better view if the buyer has entered into an unconditional 14. Dederick v. Wolfe, 68 Miss. 500, 9 So. 350, 24 A. S. R. 283. Notes: L.R.A.1916A 917; 1 Ann. Cas. 268. 15. Note: 1 Ann. Cas. 268. See the preceding paragraph. 16. Ballinger v. West Pub. Co., 239 U. S. 646, 36 S. Ct. 167, 60 U. S. (L. ed.) 484. Note: Ann. Cas. 1917D 466. 17. See supra, par. 376 et seq. 18. Note: L.R.A.1916A 920. 19. Chase V. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A.1916A 912. Note: L.R.A.1916A 920. 20. Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A.1916A 912. As to a tender of the amount due as affecting the possessory lien of a mechanic or the like, see LIENS, vol. 17, p. 606. 1. Note: L.R.A.1916A 921. 2. Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, Ann. Cas. 1913C 659, 36 L.R.A. (N.S.) 594; Francis v. Bohart, 76 Ore. 1, 143 Pac. 920, 147 Pac. 755, L.R.A.1916A 922. Note: L.R.A.1916A 921. promise to pay the price, the fact that the property is accidentally destroyed while in his possession does not relieve him from liability for the unpaid and subsequently accruing instalments of the price; $ and this is held true though the contract of sale did not contain an express promise on the part of the buyer to pay the price, the implied promise of the buyer in such a case being considered absolute to the same extent as though his note was given for the price or he had otherwise expressly promised to pay the same. The rule has been carried to the extent of holding that where the seller retakes the property on the failure of the buyer to pay, and it is destroyed without fault of the seller while held by him as security for the price, the loss falls on the buyer. The reason for this view is that the buyer's right to the possession before default and his right to acquire the title by the payment of the agreed price constitute a valid consideration for his promise to pay which is not affected by the destruction of the property, and distinguishes the case from the ordinary executory contracts of sale under which the loss falls on the seller in case the property is destroyed before the title has passed. On the other hand, on the theory that the risk follows the title, the view is taken, in a number of jurisdictions, that, if the property is accidentally destroyed while in the hands of the buyer, the seller has no right to recover instalments of the price thereafter accruing; and this is held true Va. 574, 75 S. E. 117, Ann. Cas. 1913D 335. Notes: 89 Am. Dec. 129; 138 A. S. R. 903; 32 L.R.A. 458; 2 L.R.A. (N.S.) 99; 36 L.R.A. (N.S.) 595; 6 Ann. Cas. 685; 12 Ann. Cas. 711; Ann. Cas. 1913C 661; Ann. Cas. 1913D 338. 4. La Valley v. Ravenna, 78 Vt. 152, 62 Atl. 47, 112 A. S. R. 898, 6 Ann. Cas. 684, 2 L.R.A. (N.S.) 97. 5. Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, Ann. Cas. 1913C 659, 36 L.R.A. (N.S.) 594. As a general rule, however, the retaking of possession by the seller releases the buyer from liability for the price. See supra, par. 785. 3. Chicago Ry. Equipment Co. v. Merchants Nat. Bank, 136 U. S. 268, 10 S. Ct. 999, 34 U. S. (L. ed.) 349; Roach v. Whitfield, 94 Ark. 448, 127 S. W. 722, 140 A. S. R. 131; Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, Ann. Cas. 1913C 659, 36 L.R.A. (N.S.) 594; Phenix Ins. Co. v. Hilliard, 59 Fla. 590, 52 So. 799, 138 A. S. R. 171; Burnley v. Tufts, 66 Miss. 48, 5 So. 627, 14 A. S. R. 540; Collerd v. Tully, 78 N. J. Eq. 557, 80 Atl. 491, Ann. Cas. 1912C 78; Tufts v. Griffin, 107 N. C. 47, 12 S. E. 68, 22 A. S. R. 863, 10 L.R.A. 526; Whitlock v. Auburn Lumber Co., 145 N. C. 120, 58 S. E. 909, 12 L.R.A. (N.S.) 1214; Lancaster v. Southern Ins. Co., 153 N. C. 285, So. 627, 14 A. S. R. 540; Tufts v. 6. Burnley v. Tufts, 66 Miss. 48, 5 69 S. E. 214, 138 A. S. R. 665; Harley v. Stanley, 25 Okla. 89, 105 Pac. Griffin, 107 N. C. 47, 12 S. E. 68, 22 188, 138 A. S. R. 900; Marion Mfg. A. S. R. 863, 10 L.R.A. 526; La ValCo. v. Buchanan, 118 Tenn. 238, 99 ley v. Ravenna, 78 Vt. 152, 62 Atl. S. W. 984, 12 Ann. Cas. 707, 8 L.R.A. 47, 112 A. S. R. 898, 6 Ann. Cas. 684, (N.S.) 590; La Valley v. Ravenna, 78 2 L.R.A. (N.S.) 97. Vt. 152, 62 Atl. 47, 112 A. S. R. 898, 6 Ann. Cas. 684, 2 L.R.A. (N.S.) 97; Exposition Arcade Corp. v. Lit, 113 7. Bishop v. Minderhout, 128 Ala. 162, 29 So. 11, 86 A. S. R. 134, 52 L.R.A. 395; Tabbut v. American Ins. though notes were given by the buyer and the right of the seller to recover on such notes as they fell due after the accidental destruction of the property has been denied. The parties may by express agreement determine where the loss shall fall in case of the destruction of the property before the price is paid." And, even though the accidental destruction of the subject matter of the sale will not ordinarily release the buyer from liability on his unconditional promise to pay the price, a distinction has been made in the case where it is contemplated by the parties that the price is to be paid from the earnings derived by the buyer from the use of the subject matter of the sale. Thus it has been held that the death of a stallion without fault of the buyer terminates further liability of the buyer for the price under a contract by which the title is to remain in the seller until the price is paid, and the price is to be paid out of the earnings of the animal.10 789. Receiver Appointed for Buyer.-Where locomotive engines were sold and delivered to a railroad company, notes to be given for the price, the title to the locomotives to remain in the seller until the notes were paid, and the receiver of the company subsequently surrendered them to the seller, the amount due for their use and injured condition when returned is only a general debt of the company, with no special equities in its favor. While ordinarily a receiver is not bound by the executory contracts of his predecessor unless he affirms or ratifies them,12 it has been held that receivers, who on taking possession of a railroad find there cars purchased by persons who assumed to act as receivers without authority, leaving the title in the seller to secure the price, cannot retain them without paying the contract price, and cannot acquire the title merely by paying what the property is worth.13 Rights of Buyer Generally 790. In General.-A buyer entitled to possession under a contract of sale, reserving title in the seller until the price is paid, has a special property in the subject matter of the sale which will entitle him to sue third persons for its wrongful taking, destruction or injury; 14 Co., 185 Mass. 419, 70 N. E. 430, 102 L.R.A. 395. Notes: 14 A. S. R. 541; 22 A. S. R. 867; 133 A. S. R. 905; 32 L.R.A. 48; 2 L.R.A. (N.S.) 97; 6 Ann. Cas. 686; Ann. Cas. 1913D 338. As to the general rule that the risk follows the title in ordinary executory contracts of sale. see supra, par. 310. 8. Bishop v. Minderhout, 128 Ala. 162, 29 So. 11, 86 A. S. R. 134, 52 9. Note: Ann. Cas. 1913D 338. 10. Swaney v. Alslott, 134 Ia. 63, 111 N. W. 406, 8 L.R.A.(N.S.) 1032. 11. Huidekoper v. Hinckley Locomotive Works, 99 U. S. 258, 25 U. S. (L. ed.) 344. 12. See RECEIVERS, vol. 23, p. 74. 13. Crawford v. Gordon, 88 Wash. 553, 153 Pac. 363, L.R.A.1916C 516. 14. Smith v. Gufford, 36 Fla. 481, and in such a case he may, as a general rule, recover the full value of the property or to the full extent of the injury,15 and this is especially true as regards an injury to the subject matter of the sale when the seller appears as a witness for the buyer. 16 In this respect the buyer is regarded as occupying the same position as a bailee, with equal right to recover for the conversion or injury to the property.17 Thus it has been held that the consignment of a chattel through a cominon carrier to one who has purchased it on the understanding that the title thereto is not to vest in him until the price is fully paid gives him a special property in such chattel, and, if it is destroyed while in the carrier's possession, he is entitled to recover its full value from the latter.18 Also the legal presumption is that on the delivery of goods to a common carrier the title thereto vests in the consignee, and this presumption the carrier has a right to rely upon, in the absence of express notice from the consignor to the contrary, and the carrier, therefore, in the absence of such notice, has the right to settle with the consignee in case the property is lost, stolen, or destroyed; and this rule applies where goods are consigned by the seller to the buyer under a contract of sale reserving title in the seller until the price is paid; 19 and it has been held that the registration of the contract of sale, according to the provisions of a statute requiring such registration to render the reservation of title valid as against third persons, does not affect a carrier who has received the subject matter of the contract for transportation to the buyer, with notice of the fact that the title to the property is still in the seller, and hence, if the property is destroyed while in the carrier's hands, he may show, in bar of an action by the seller to recover its value, that a settlement has already been made with the buyer. 20 If, after the injury to the subject matter of the sale, the seller retakes possession for the default of the buyer, this has been held to terminate the buyer's interest, and preclude him from thereafter suing for such injury.1 18 So. 717, 51 A. S. R. 37; Lord v. a bailee to sue for the conversion of Buchanan, 69 Vt. 320, 37 Atl. 1047, or an injury to the subject matter of 60 A. S. R. 933; Stotts v. Puget the bailment, see BAILMENTS, vol. 3, Sound Traction, etc., Co., 94 Wash. p. 127. 339 162 Pac. 519. L.R.A.1917D 214. Note: LR.A.1917D 217. 15. Smith v. Gufford, 36 Fla. 481, 18 So. 717, 51 A. S. R. 37; Lord v. Buchanan, 69 Vt. 320, 37 Atl. 1047, 60 A. S. R. 933. Note: L.R.A.1917D 219. 16. Stotts v. Puget Sound Traction, etc.. Co., 94 Wash. 339, 162 Pac. 519, L.R.A.1917D 214. 17. Stotts v. Puget Sound Traction Co.. 94 Wash. 339, 162 Pac. 519, L.R.A.1917D 214. As to the right of R. C. L. Vol. XXIV.—32. 497 18. Dyer v. Great Northern R. Co., 51 Minn. 345, 53 N. W. 714, 38 A. S. R. 506. As to the proper party plaintiff in actions against carriers of goods, see CARRIERS, vol. 4, p. 940 et seq. 19. Dyer v. Great Northern R. Co., 51 Minn. 345, 53 N. W. 714, 38 A. S. R. 506. See CARRIERS, vol. 4, p. 941. 20. Dyer v. Great Northern R. Co., 51 Minn. 345, 53 N. W. 714, 38 A. S. R. 506. 1. Stotts v. Puget Sound Traction |