accepted the article sold there is nothing to prevent him from so doing and thereby binding himself to pay in accordance with the contract, and his refusal to accept delivery will not affect his liability upon the special contract." So a delivery or tender is not necessary where by the terms of a contract for the manufacture of an article the buyer on completion thereof is to remove the same. 18 If there has been a delivery of the article sold in accordance with the terms of the contract though it may not have come into the hands of the buyer, this will ordinarily be sufficient to pass the title and enable the seller to maintain an action for the price. 19 On the other hand as a general rule there must be a delivery, actual or constructive, of the property sold, or an appropriation of it to the contract, in order to entitle the seller to recover the purchase price, that is, the title must vest in the buyer as a necessary condition to his liability for the price.20 And a fortiori where the sale is executory no recovery for the price can be had without proof of a delivery or tender of the goods by the seller in accordance with the contract. So where the goods are to be delivered and paid for in instalments the seller cannot withhold deliveries on account of the buyer's failure to make payments for the previous instalment and recover the full price." The question as to the right of the seller to sue for the price in case of a conditional sale, reserving title in the seller until the price is paid, is discussed later.3 356. Necessity for Acceptance by Buyer Generally.-It is laid down by Saunders on Pleading and Evidence that, to support an action for goods sold and delivered, the plaintiff must prove not only such a delivery as will vest the property in the goods in the defendant, but such a delivery as will divest himself of all lien on the goods and enable the defendant to maintain trover for them without paying or offering to pay for them. This statement has frequently been referred to with approval by the courts in this country, and according to the 17. White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 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. Note: 51 L.R.A. (N.S.) 745. 18. Crookshank v. Burrell, 18 Johns. (N. Y.) 58, 9 Am. Dec. 187. Note: 51 L.R.A.(N.S.) 745. 19. Note: 51 L.R.A. (N.S.) 743. 20. Pate v. Ralston, 158 Ia. 411, 139 N. W. 906, 51 L.R.A. (N.S.) 735; Price v. Weisner, 83 Kan. 313, 111 Pac. 439, 31 L.R.A.(N.S.) 927; New England Dressed Meat, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 A. S. R. 516; McCormick Har vesting Mach. Co. v. Balfny, 78 Minn. 370, 81 N. W. 10, 79 A. S. R. 393. Note: 51 L.R.A. (N.S.) 740. 1. Rodgers v. Wise, 106 Ark. 310, 153 S. W. 253, 43 L.R.A.(N.S.) 1009; Price v. Weisner, 83 Kan. 343, 111 Pac. 439, 31 L.R.A. (N.S.) 927; Arons v. Cummings. 107 Me. 19, 78 Atl. 98, 31 L.R.A. (N.S.) 942. Note: 51 L.R.A.(N.S.) 743. view taken in some jurisdictions, even though the contract of sale is executed in so far as to pass the title to the buyer, an actual delivery to and acceptance by the buyer is essential to enable the seller to maintain an action for the price as for goods sold and delivered, even though there has been a tender of the goods to the buyer which has been refused by him and the goods are held by the seller subject to the buyer's demand. The remedy in such case is for breach of the contract of bargain and sale, where the rule of damages in favor of the seller is not the contract price, but the difference between it and the value of the goods retained, for he should not keep the goods and have their price too. And it has been said that unless the buyer may maintain trover against the seller for the goods, the latter should not have an action for the price, as goods sold and delivered, but damages only for the breach of the contract of bargain and sale; 8 and the fact that the buyer has taken possession of a part of the goods has been held not to affect the rule. On the other hand, in most jurisdictions, in the absence of statutory regulation, the seller is permitted, upon a due tender of the goods to the buyer and his refusal. to accept the same, even though the contract of sale is executory provided the tender is made before the buyer's repudiation or countermand of the order, to retain the goods as belonging to the buyer and recover the contract price as for goods bargained and sold, on the theory that the title has passed to the buyer by virtue of the sale or on the tender in pursuance of the contract.10 The rule denying a recovery of the price is very generally upheld where the contract of 5. Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713; Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 A. S. R. 371; Arons v. Cummings, 107 Me. 19, 78 Atl. 98, 31 L.R.A. (N.S.) 942; Trinidad Asphalt Mfg. Co. v. Buckstaff Bros. Mfg. Co., 86 Neb. 623, 126 N. W. 293, 136 A. S. R. 710; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241. Note: 51 L.R.A. (NS.) 743. 6. Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 A. S. R. 371. 7. Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713; Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 A. S. R. 371. 8. Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 A. S. R. 371. 9. Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713. 10. 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 Ia. 411, 139 N. W. 906, 51 L.R.A. (N.S.) 735; Webber v. Minor, 6 Bush (Ky.) 463, 99 Am. Dec. 688; Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; Putnam v. Glidden, 159 Mass. 47, 34 N. E. 81, 38 L.R.A. 394; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190; Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544; Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 L.R.A. 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; Henderson v. Jennings, 228 Pa. St. 188, 77 Atl. 453, 30 L.R.A. (N.S.) 827; Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659. Notes: 52 L.R.A. 244 et seq.; 17 L.R.A. (N.S.) 809; 43 L.R.A. (N.S.) 368; 51 L.R.A. (N.S.) 736, 746. sale is wholly executory and is breached by the buyer's repudiation of the contract before tender by the seller.11 357. Articles to Be Manufactured or Produced.-Where goods, wares or merchandise contracted for are to be manufactured or thereafter produced by the seller, the view is taken in some jurisdictions, applying the general rule there in force as to the necessity for delivery and acceptance to warrant an action for the price,12 that even after their manufacture and tender by the seller if the buyer refuses to accept, the seller cannot maintain an action for the agreed price but is driven to his action for damages for breach of the special contract.18 In other jurisdictions the rule prevails that after completion of the articles or goods and refusal of the buyer to accept the same the seller may set them apart for the buyer and recover the agreed price. In some of these jurisdictions this result is reached by applying the rule which there prevails as to the sale of articles generally; in others it is reached by making such case an exception to the general rule there prevailing that acceptance by the buyer is essential to the maintenance of an action for the price; 14 and though ordinarily acceptance by the buyer is necessary to enable the seller to recover for the price, still it has been held that where on completion of the article the buyer is notified thereof and makes no objection, his acceptance may be presumed so as to enable the seller to maintain an action for the price.15 Of course if the articles or goods ordered do not when completed conform to the contract there is no duty imposed on the buyer to accept the same and in case of his refusal to do so no action can be maintained by the seller for the price nor for damages for the refusal.16 358. Qualification of Rule Permitting Recovery of Price on Refusal to Accept.-If the seller after the refusal of the buyer to accept the goods treats them as his own instead of setting them apart for the buyer the title for all purposes remains in him and he cannot thereafter maintain an action for the price.17 And while in some cases 11. See infra, par. 369. 12. See supra, preceding paragraph. 13. Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176. Notes: 56 Am. Dec. 645; 33 Am. Rep. 702; 51 L.R.A. (N.S.) 746, 750. 14. Bond v. Bourk, 54 Colo. 51, 129 Pac. 223, Ann. Cas. 1914C 581, 43 L.R.A. (N.S.) 97; Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Moline Scale Co. v. Beed, 52 Ia. 307, 3 N. W. 96, 35 Am. Rep. 272; Bauman v. McManus, 75 Kan. 106, 89 Pac. 15, 10 L.R.A. (N.S.) 1138; God dard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163; Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 A. S. R. 692; Shawhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313; Smith v. Wheeler, 7 Ore. 49, 33 Am. Rep. 698. Notes: 56 Am. Dec. 646; 4 L.R.A. (N.S.) 741; 51 L.R.A. (N.S.) 749. 15. McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163. 16. See supra, par. 242. 17. Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Dec. 713. the contrary view has been taken,18 it seems to be the better view that an actual segregation or setting aside and tender of the article sold in full compliance with the terms of the contract of sale must be made by the seller; for the purpose of recovery of the price he cannot rely on acts or conduct of the buyer which would be sufficient to found a waiver of tender for the purpose of founding an action for damages for the buyer's breach of the contract.19 Thus where the contract was for the sale of a machine to be delivered to the buyer at a certain time and place, and it appeared that at the appointed time and place the buyer was shown the separate pieces of a number of machines, of identical form and size, and was told that one was designed for him, and would be put up for him if he would take it, but he refused, it was held that there was not such a tender or delivery as vested the title in the buyer so as to enable the seller to maintain an action for the price.20 So where the contract was for the sale and delivery of cord wood at the yard of the buyer, and the buyer notified the seller that he would refuse to accept any further delivery, it was held that the buyer, in order to entitle him to recover the contract price, must haul and tender delivery of the wood as near the yard of the buyer as reasonably practicable. Likewise where the contract, the price being a lump sum, required the seller to erect or install machinery or the like on the premises of the buyer it has been held entire and on refusal of the buyer to permit the seller to erect or install the same, though delivery was tendered and refused, the seller has been denied the right to recover the agreed price. On the other hand it has been held that one who refuses to permit the installation of apparatus which he has ordered cannot defeat an action for the price, on the theory that title has never vested in him. And it has been held, where the only thing remaining to be done by the seller of machinery, manufactured to order, was to load the same on cars to be furnished by the buyer, and the latter refused to furnish the cars, that the seller could set apart the machinery for the buyer and 18. Note: 51 L.R.A.(N.S.) 746. 19. Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140; Pate v. Ralston, 158 Ia. 411, 139 N. W. 906, 51 L.R.A. (N.S.) 735; McCormick Harvesting Mach. Co. v. Balfany, 78 Minn. 370, 81 N. W. 10, 79 A. S. R. 393; Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659; Lincoln v. Charles Alshuler Mfg. Co., 142 Wis. 475, 125 N. W. 908, 28 L.R.A. (N.S.) 780. See also Fairbanks Co. v. Heltsley, 135 Ky. 397, 122 S. W. 198, 26 L.R.A.(N.S.) 248, Notes: 5 L.R.A. 770; 51 L.R.A. (N.S.) 743, 746. 20. Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659. See also McCormick Harvesting Mach. Co. v. Balfany, 78 Minn. 370, 81 N. W. 10, 79 A. S. R. 393. 1. Webber v. Minor, 6 Bush (Ky.) 463, 99 Am. Dec. 688. 2. Butler v. Butler, 77 N. Y. 472, 33 Am. Rep. 648. See also Moline Scale Co. v. Beed, 52 Ia. 307, 35 Am. Rep. 272. Note: 51 L.R.A. (N.S.) 743. 3. Bond v. Bourk, 54 Colo. 51, 129 Pac. 223, Ann. Cas. 1914C 581, 43 L.R.A.(N.S.) 97. sale is wholly executory and is breached by the buyer's repudiation of the contract before tender by the seller.11 357. Articles to Be Manufactured or Produced.-Where goods, wares or merchandise contracted for are to be manufactured or thereafter produced by the seller, the view is taken in some jurisdictions, applying the general rule there in force as to the necessity for delivery and acceptance to warrant an action for the price,12 that even after their manufacture and tender by the seller if the buyer refuses to accept, the seller cannot maintain an action for the agreed price but is driven to his action for damages for breach of the special contract.18 In other jurisdictions the rule prevails that after completion of the articles or goods and refusal of the buyer to accept the same the seller may set them apart for the buyer and recover the agreed price. In some of these jurisdictions this result is reached by applying the rule which there prevails as to the sale of articles generally; in others it is reached by making such case an exception to the general rule there prevailing that acceptance by the buyer is essential to the maintenance of an action for the price; 14 and though ordinarily acceptance by the buyer is necessary to enable the seller to recover for the price, still it has been held that where on completion of the article the buyer is notified thereof and makes no objection, his acceptance may be presumed so as to enable the seller to maintain an action for the price. 15 Of course if the articles or goods ordered do not when completed conform to the contract there is no duty imposed on the buyer to accept the same and in case of his refusal to do so no action can be maintained by the seller for the price nor for damages for the refusal.16 358. Qualification of Rule Permitting Recovery of Price on Refusal to Accept. If the seller after the refusal of the buyer to accept the goods treats them as his own instead of setting them apart for the buyer the title for all purposes remains in him and he cannot thereafter maintain an action for the price.17 And while in some cases 11. See infra, par. 369. 12. See supra, preceding paragraph. 13. Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176. Notes: 56 Am. Dec. 645; 33 Am. Rep. 702; 51 L.R.A. (N.S.) 746, 750. 14. Bond v. Bourk, 54 Colo. 51, 129 Pac. 223, Ann. Cas. 1914C 581, 43 L.R.A. (N.S.) 97; Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Moline Scale Co. v. Beed, 52 Ia. 307, 3 N. W. 96, 35 Am. Rep. 272; Bauman v. McManus, 75 Kan. 106, 89 Pac. 15, 10 L.R.A. (N.S.) 1138; God dard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163; Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 A. S. R. 692; Shawhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313; Smith v. Wheeler, 7 Ore. 49, 33 Am. Rep. 698. Notes: 56 Am. Dec. 646; 4 L.R.A. (N.S.) 741; 51 L.R.A.(N.S.) 749. 15. McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163. 16. See supra, par. 242. 17. Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Dec. 713. |