350. Duty of Buyer as to Minimizing Damages Generally.-The general rule that a party injured by breach of contract is bound to protect himself, if he can do so with reasonable exertion, or at trifling expense, and cannot recover from the delinquent party damages which he could, with reasonable effort, have avoided, is applicable in actions by the buyer for the seller's breach with respect to delivery and this may require that the buyer supply himself by purchases in the general market with the subject matter of the sale.10 For example, a party contracts for a quantity of bricks to build a house, to be delivered at a given time, and engages masons and carpenters to go on with the work. The bricks are not delivered. If other bricks, of an equal quality, and for the stipulated price, can be at once purchased on the spot, it would be unreasonable, by neglecting to make the purchase, to claim and receive of the delinquent party damages 'for the workmen, and the amount of rent which might be obtained for the house, if it had been built.11 And though the same kind of article cannot be obtained in the market, if a reasonable substitute may be so obtained, it is the duty of the buyer to do so and thus minimize his special damages. 12 Until the time for delivery has arrived or the buyer has been notified that the seller will be unable to make delivery he is justified in acting on the presumption that the seller will fulfil his contract and he is not required to take steps to procure the goods elsewhere.18 And though the time for delivery has passed the buyer may rely on the assurances of the seller that the articles will be furnished before they could be obtained elsewhere as excusing his omission to take steps to supply himself and thus mitigate his special damages. 14 The burden of proving that the damages alleged to have been sustained by the buyer have been prevented or mitigated by his action rests on the seller, as the party charged with responsibility for breach of the contract. 15 42 Pac. 576, 52 A. S. R. 70; Raymond v. Yarrington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 97 A. S. R. 914, 62 L.R.A. 962. Note: Ann. Cas. 1914A 1154. 9. See DAMAGES, vol. 8, p. 442 et seq. S. 10. Warren v. Stoddart, 105 U. 224, 26 U. S. (L. ed.) 1117; Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L.R.A. 167; Hardwood Lumber Co. v. Adam, 134 Ga. 821, 68 S. E. 725, 32 L.R.A. (N.S.) 192; Davis v. Fish, 1 G. Greene (Ia.) 406, 48 Am. Dec. 387; Miller v. Mariner's Church, 7 Greenl. (Me.) 51, 20 Am. Dec. 341; Stonega Coke, etc., Co. v. Addington, 112 Va. 807, 73 S. E. 257, 37 L.R.A. (N.S.) 969; Kelley v. La Crosse Carriage Co., 120 Wis. 84, 97 N. W. 674, 102 A. S. R. 971. Notes: 57 L.R.A. 202; 32 L.R.A. (N.S.) 192. 11. Laporte Imp. Co. v. Brock, 99 Ia. 485, 68 N. W. 810, 61 A. S. R. 245; Miller v. Mariner's Church, 7 Greenl. (Me.) 51, 20 Am. Dec. 341. 12. Note: 57 L.R.A. 203. 14. Hardwood Lumber Co. v. Adam, 134 Ga. 821, 68 S. E. 725, 32 L.R.A. (N.S.) 192; Kelly v. La Crosse Carriage Co., 120 Wis. 84, 97 N. W. 674, 102 A. S. R. 971. 15. Campfield v. Sauer, 189 Fed. 351. Duty to Purchase from Seller on Other Terms.-It has been held that the buyer is under no obligation or duty to accept an offer by the seller at the time and place of delivery to sell to him at an advance on the agreed price though below the then general market price, and that such offer does not affect the right of the buyer to recover the difference between the agreed price and the market value at the time and place for delivery; 16 and this has also been held true as regards a claim of the buyer for special damages otherwise recoverable. Thus it has been held that upon refusal of the seller to comply with his contract to furnish lumber for a building, the buyer is under no obligation to purchase from him at an advanced price, in order to minimize the damages for which he may be liable for delaying the completion of the structure by his breach of contract, especially where the offer of the seller to deliver at the advanced price is not unconditional but rather implies that its acceptance will be considered a waiver by the buyer of any claim for the seller's breach of his contract. Other cases, however, have taken the view that the duty of the buyer with regard to the mitigation of loss may require him to purchase from the seller at an advance on the agreed price.18 And according to the better view it seems that as regards a claim of the buyer for special damages that the duty to minimize loss requires a buyer, upon breach by the seller of a contract to sell goods upon credit, to accept the latter's unconditional offer to sell at a reduced. price for cash on delivery, the reduction being the equivalent to the value of the credit, where he is able to accept it, and goods of that kind and quality are not purchasable from other persons.19 XII. REMEDIES OF SELLER GENERALLY General Principles 352. Preliminary Statement.-The seller, when the buyer declines to take and pay for the property, ordinarily has the choice of any of three methods of indemnifying himself against loss: (1) he may store 576, 111 C. C. A. 14, 38 L.R.A. (N.S.) 837. 16. Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C 758. 17. Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L.R.A. (N.S.) 837 and note, distinguishing Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L.R.A. 167. Note: 38 L.R.A. (N.S.) 837. As to the obligation of the seller to reimburse the buyer for liabilities in curred by him under collateral contracts, see supra, par. 343. 18. See Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L.R.A. 167. Note: 38 L.R.A. (N.S.) 838. 19. Lawrence v. Porter, 63 Fed. 62, 22 U. S. App. 483, 11 C. C. A. 27, 26 L.R.A. 167, distinguished in Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L.R.A. (N.S.) 837, cited supra. See also Warren v. Stoddart, 105 U. S. 224, 26 U. S. (L. ed.) 1117. or retain the property for the buyer and sue him for the entire price; (2) he may sell the property and recover the difference between the contract price and the price obtained on the resale; or (3) he may keep the property as his own and recover the difference between the market value at the time and place of delivery and the contract price.20 These remedies, however, are not concurrent but inconsistent, and having elected to pursue one the seller may not thereafter adopt a different one,1 and an abortive attempt on his part to resort to the remedy by resale on account of the defaulting buyer, the requirement of the statute in respect thereto not having been followed, does not, it has been held, affect his right to sue for damages for breach of the contract of sale. In an action by a seller for the purchase price of a stock of merchandise which the purchaser had refused to accept and pay for according to his agreement, it has been held that no error is committed in the appointment of a receiver to take charge of and sell the goods, that the proceeds may be applied on the plaintiff's claim. Where the sale is on credit or where cash payment is waived on the delivery of the property the mere failure of the buyer to pay the price does not entitle the seller to recover the property, the title thereby passes to the buyer and the remedy of the seller is against the buyer personally; but if the sale is for cash and the delivery is conditional on the buyer's payment of the price and without any intention of waiving such payment the seller may, as is heretofore shown, on the refusal of the buyer to pay, recover the property. It sometimes happens in case of sales to municipal corporations that the contract is invalid and unenforceable on account of the want of power on the part of the corporation to make the purchase. In such a case it is generally recognized that the corporation will not be allowed to deny liability on the contract and at the same time retain the property received thereunder, and if the seller has acted in good faith in the matter and without fraud he will be 20. Mendel v. Miller, 126 Ga. 834, 56 S. E. 88, 7 L.R.A. (N.S.) 1184; Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140; Pate v. Ralston, 158 la. 411, 139 N. W. 906, 51 L.R.A. (N.S.) 735; Webber v. Minor, 6 Bush (Ky.) 463, 99 Am. Dec. 688; Putnam v. Glidden, 159 Mass. 47, 34 N. E. 81, 38 A. S. R. 394; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190; Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 A. S. R. 692; Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, 82 A. S. R. 728, 53 L.R.A. 867; Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165, Ann. Cas. 1913C 758; Ganson v. Madigan, 15 Wis. 144, 82 Notes: 56 Am. Dec. 646; 52 L.R.A. 244; 43 L.R.A. (N.S.) 368. 1. Note: 42 L.R.A. (N.S.) 673. 2. Stanford v. McGill, 6 N. D. 536, 72 N. W. 938, 38 L.R.A. 760, overruled on another point in Hart-Parr Co. v. Finley, 31 N. D. 130, 153 N.. W. 137, Ann. Cas. 1917E 706. L.R.A.1915E 851. 3. Swisher v. Dunn, 8 Kan. 412, 131 Pac. 571, 45 L.R.A.(N.S.) 810. 4. Chapman v. Lathrop, 6 Cow. (N. Y.) 110, 16 Am. Dec. 433. 5. See supra, par. 207. permitted to recover the possession of the property. And it has been held that where a person selling machinery to a municipal corporation for use in its public affairs at a time when the contract of purchase is unenforceable because of exceeding the constitutional debt limit, but retains title or a lien on the property until paid for, he may enforce his lien by a sale of the property for the satisfaction of the purchase money." 353. Joinder and Splitting Causes of Action.-A provision of a practice act under which separate counts are required for separate and distinct causes of action, but not for the presentation of separate and distinct claims for relief founded on the same cause of action or transaction, does not require separate counts in all cases where the plaintiff declares on several causes of action, but only where these are separate and distinct from each other.8 And under such a provision it has been held a single count is sufficient in an action in which the relief sought is merely the recovery of the purchase price of a machine, although two causes of action are relied on to sustain the recovery, one for breach of contract in failing to pay the purchase price and the other in tort for forcibly preventing the seller from regaining possession of the machine which the buyer retained but at the time notified the seller that he refused to accept the same because it did not conform to the contract. Under the code form of pleading it has been held that the seller may join a cause of action to reform a written contract of sale and one to recover damages for the buyer's breach of the contract, and that in such a case in the regular order of proceeding the equitable action should be tried by the court and the legal cause of action by the court and jury; still the fact that the court submitted all the issues to a jury in the first instance, and took their verdict on such issues, is not reversible error, if the court, after taking the verdict of the jury on the issue on the reformation of the contract, made and filed findings of fact and conclusions of law which sustain the judgment reforming the contract.10 A contract may be severable for the purpose of enforcing rights when they accrue, and ordinarily a contract to do several things at different times is divisible 6. Chapman v. Douglass County, 107 U. S. 348, 2 S. Ct. 62, 27 U. S. (L. ed.) 378; Snouffer v. Tipton, 161 Ia. 223, 142 N. W. 97, L.R.A.1915B 173; Bardwell v. Southern Engine, etc., Works, 130 Ky. 222, 113 S. W. 97, 20 L.R.Á. (N.S.) 110; Floyd County v. Allen, 137 Ky. 575, 126 S. W. 124, 27 L.R.A. (N.S.) 1125. Notes: 20 L.R.A. (N.S.) 110; L.R.A. 1915B 173. As to liability of municipalities on invalid contracts generally, see MUNIC IPAL CORPORATIONS, Vol. 19, p. 1063 et seq. 7. Bardwell V. Southern Engine, etc., Works, 130 Ky. 222, 113 S. W. 97, 20 L.R.A. (N.S.) 110. 8. As to joinder of causes of action ́ in a single count generally, see PLEADING, vol. 21, p. 467 et seq. 9. Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 Atl. 76, 25 L.R.A. 856. · 10. Cameron v. Wite, 74 Wis. 423, 43 N. W. 155, 5 L.R.A. 493. in its nature and an action will lie on each breach.11 This general rule is applicable in case of severable contracts of sale.12 And it is the general rule that where a contract of sale extending over a considerable period of time calls for delivery in instalments and separate payments for the instalments as delivered, the seller may upon each default on the part of the buyer to accept delivery of an instalment, when tender is made by the seller in accordance with the terms of the contract, institute an action for damages, and the recovery in one action will not preclude his maintenance of another action for a subsequent default on the part of the buyer with respect to a later instalment.18 354. Suit in Equity.-In contracts for the sale of personal property, jurisdiction in equity is rarely entertained, although the only remedy at law may be the recovery of damages, the measure of which is the difference between the market value of the property, at the time of the breach, and the price as fixed by the contract. The reason is that, in regard to most articles of personal property, the commodity and its market value are supposed to be substantially equivalent, each to the other, so that they may be readily interchanged. The seller may convert his rejected goods into money; the purchaser, with his money, may obtain similar goods; each presumably at the market price; and the difference between that and the contract price, recoverable at law, will be full indemnity.14 And as a general rule, equity has no jurisdiction of a suit to recover a general balance of an account for goods sold, where the demands sought to be recovered are all legal demands unconnected with any fraud, lien, or trust.15 So a court of equity will not decree specific performance of a written contract of sale at the instance of the seller when all that is to be done by the buyer is the payment of money, for which the seller may maintain an action at law after a tender of performance on his part.16 Action for Price 355. In General.-If the buyer expressly agrees that he shall be liable for the price before the title vests in him or before he has Note: 43 L.R.A. (N.S.) 1011. 14. Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97. As to the general jurisdiction of courts of equity, see EQUITY, vol. 10, p. 245 et seq. 15. Garland v. Hull, 13 Smedes & M. (Miss.) 76, 51 Am. Dec. 140. See generally, ACCOUNTS AND ACCOUNTING, vol. 1, p. 223; Equity, vol. 10, pp. 355-356. 13. Johnson Forge Co. v. Leonard, 3 Penn. (Del.) 342, 51 Atl. 305, 94 A. S. R. 86, 57 L.R.A. 225; Krebs Hop Co. 16. Jones v. Newhall, 115 Mass. 244, v. Livesley, 59 Ore. 574, 114 Pac. 944, 15 Am. Rep. 97. And see SPECIFIC 118 Pac. 165, Ann. Cas. 1913C 758. PERFORMANCE. |