wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods.

This section recognizes the rule, which we have all along assumed to be true, that the seller could recover the price, if title, or, as the Sales Act here calls it, "the property," had passed to the buyer. The main question in all such cases is to determine whether or not title had actually passed. We do not need to retrace this ground which was covered in Chapters I, II, and IV. If the buyer broke his contract one minute before title would have passed to him, if something had not happened to prevent, this section is not applicable. When invoking this section, the seller must prove that title is in the buyer. One should have in mind here particularly sections 17, 18, 19, and 20 of the Sales Act, and also the sections dealing with negotiable documents of title, and the cases which we have taken up construing and applying these sections. With that statement it is believed that it is not necessary to go further into the section quoted above.

(b) ACTION FOR PURCHASE PRICE, WHERE TITLE HAS NOT PASSED TO THE BUYER, BUT THE BUYER HAS AGREED

TO PAY THE PRICE ON A DAY CERTAIN

Sales Act, Section 63, Subsection 2. Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it.

This section states a general principle of contract law. If A. agrees to sell his horse to B., and to transfer title and possession to B. on February 1st next, and B. agrees to pay for the horse on January 1st preceding the date fixed for transfer of title to him, it is clear that B., having made a promise to perform on January 1st, will at the close of that day be guilty of a breach of contract, and A. may on January 2d sue B. for the price. By the express terms of the contract the obligation of A. to deliver possession and to transfer title to the horse were not conditions precedent to B.'s obligation to perform. This situation is common in connection with contracts of conditional sale, as is illustrated in the next case.

R. C. BARTLEY CO. v. LEE.

(Supreme Court of New Jersey, 1915. 87 N. J. Law, 19, 93 Atl. 78.) Action by the R. C. Bartley Company against Edwin Lee. There was judgment for plaintiff, and defendant brings certiorari.

SWAYZE, J. The Bartley Company contracted with Lee to put a heating apparatus in his house, reserving title until he had paid for the same. He paid a portion of the purchase price but refused to pay the balance and when suit was brought claimed to recoup damages. The trial judge decided the facts in favor of the plaintiff, and awarded judgment for the balance of the purchase price. The only question presented by the appeal is whether it is proper to allow the Bartley Company to recover the balance of the purchase price or whether they should have been restricted to a recovery of the damages for breach of an executory contract of sale. The theory of the defendant is that as the title did not pass, although the heating apparatus was in his house, the only remedy of the plaintiff was for breach of an executory contract. Whether this is to be regarded as a working contract or a contract of sale strictly so called is of no importance. Assuming, in the defendant's favor, that it was a contract of sale, the law is settled adversely to his contention.

It is dealt with by Williston at section 579 of his treatise on Sales, and is within the rule of section 63 of Sales Act, C. S. 4662. It is also the logical result of our decision in American Soda Fountain Co v. Vaughn, 69 N. J. Law, 582, 55 Atl. 54. As Prof. Williston says: "No satisfactory solution of the rights of the parties in such a transaction can be found without observing that the essential character of the transaction is the same as that of an absolute sale with a mortgage back."

The judgment of the Morris common pleas must therefore be affirmed, with costs.

(c) ACTION FOR THE PRICE, WHERE TITLE HAS NOT PASSED, AND THE GOODS CANNOT READILY, BE RESOLD FOR

A REASONABLE PRICE

Before the adoption of the Sales Act, there were many statesa majority of them, in fact-held that, in any case where the buyer wrongfully refused to take the title when it was tendered to him, the seller could recover the purchase price, even though title had not passed. This rule has been criticized, because it gives to the seller a remedy which is higher than the corresponding remedy of the buyer, if the buyer were suing for the seller's breach of contract. In the latter action, the buyer, as plaintiff, would be limited in his recovery to the amount which he had actually suffered-i. e., the difference between the contract price and the market or current price of the goods at the time when the goods should have been delivered; or, to put the matter in another way, the rule really gave the seller the remedy of specific performance, when the buyer would not be entitled to this remedy. The Sales Act did not adopt the whole of this rule, but did adopt it to a certain extent:

Sales Acts, Section 63 (3). Although the property in the goods

has not passed, if they cannot readily be resold for a reasonable price, and if the provisions of section 64 (4) are not applicable, the seller may offer to deliver the goods to the buyer, and, if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer's, and may maintain an action for the price.

The principal question which presents itself is, therefore: Under what circumstances will one be justified in assuming that the goods contracted to be sold cannot readily be resold at a reasonable price? This is a question of fact, not a question of law. To answer it one must inquire into the facts largely from the business point of view. Certainly the rule would not apply to contracts to sell goods which the seller always kept in stock and was actually selling to the trade. A majority of contracts to sell would not, therefore, come within this rule. Accordingly in such case the seller would be limited to his action to recover the actual damage suffered. In the end, the seller, theoretically, would recover the purchase price, even under the latter rule, for, after having searched the country over for a buyer, doubtless he would find some one who would take them, though probably at one-half, or even a less percentage, of the purchase price. The seller could then sue the buyer for the actual damages suffered, and recover the difference between the relatively small amount which he obtained from the buyer at the greatly sacrificed price and the price agreed upon. If the seller could not sell them at any price, it would be for the court or jury to determine the amount which they should bring. While theoretically the seller is thus in the same position, actually, it makes a great deal of difference to him. If it were not for the exception stated in this subsection the buyer must go to all the trouble and expense of finding some one who will take his goods even at greatly reduced prices. In the second place, the court might find that the seller was not justified in the particular case in selling at such a heavy discount from the agreed price. To allow the seller to recover the actual price, as this subsection permits, without the necessity of taking all these risks, is of considerable value to him.

The usual case where the exception is applicable will be where goods were manufactured specially by the seller for the buyer. The following cases illustrate the application of the rule.

ILLUSTRATED POSTAL CARD & NOVELTY CO. v. HOLT. (Supreme Court of Errors of Connecticut, 1912. 85 Conn. 140, 81 Atl. 1061) Action by the Illustrated Postal Card & Novelty Company against Clarence D. Holt. Judgment for plaintiff, and defendant appeals. WHEELER, J. The plaintiff is a manufacturer of post cards in New York City. The defendant is a wholesale dealer in post cards in New Haven. A salesman of plaintiff procured from defendant in

New Haven a verbal order for Christmas post cards, subject to change. Subsequently, the defendant called at plaintiff's place of business in New York, and, after examining plaintiff's catalogue, gave it a written order for 100,000 Christmas post cards No. 438, for the price of $275, and for other Christmas cards, the price for the whole order amounting to $321, the same to be shipped, by what method did. not appear, on August 1st, and paid for December 1, 1910. The plaintiff in its business manufactured post cards of this character on special order and did not keep them in stock. On July 16, 1910, defendant wrote plaintiff that he was obliged to cancel the order for the 100,000 post cards. After securing this order, the plaintiff began the manufacture of the cards, and all of the cards so ordered were finished and packed for shipment at the date of receipt of this letter. The plaintiff replied that it could not accept the attempted cancellation as the cards would be left on its hands. Wholesale dealers in Christmas post cards place their orders by April 1st, the retail trade continues usually until the fall, and after July 1st there was no available market for these cards with jobbers and wholesale dealers. The defendant twice again requested plaintiff to cancel the order for card No. 438, which plaintiff declined to do, replying to defendant's last letter of July 29th, on July 30th, and on August 4th shipped defendant's entire order by common carrier, not separating cards 438 from the rest of the order. Upon arrival of the goods in New Haven, defendant refused to receive them and notified plaintiff he would receive balance of order exclusive of No. 438. Thereupon plaintiff notified him the goods were in the hands of the New England Navigation Company subject to his order, where they have since remained.

*

This action was begun to recover for the price of goods sold and delivered. Prior to the passage of the Sales Act (P. A. 1907, c. 212), our law permitted an action for damages by the seller against the buyer for breach of his contract to buy goods to be manufactured for him, and it sought in such action to put the injured party in the place the contract would have placed him in had it been performed. The actual damage suffered was the recovery upheld. That was, as a rule, measured by the difference between the price of the contract of sale and the value of the goods made. When there was no market, or they were worthless, the actual damages might even be the entire value of the goods. * * * So far as we are aware, no case has ever reached this court where upon breach of contract for the sale of goods an action for the price of the goods was begun.

The English law denied such a remedy, and many of our state courts have followed the English law, while a number under the lead of the New York court have given the seller, upon breach of a contract of sale, a remedy permitting him to store or retain the goods for the buyer and sue the buyer for the entire purchase price. The theory of this law is that when the seller deposits the goods with a third. person for the buyer, or segregates the goods and notifies the buyer that he holds them for him, the title passes, or the rights of the parties will subsequently be adjusted as if it had passed at that time. Williston on Sales, p. 945, § 56. Our law was in this condition when the Sales Act was passed.

The remedies provided by the Sales Act for the recovery of damages for nonacceptance of goods (section 64), and for the recovery of

the price (section 63, 1, 2), when the property in the goods has passed, do not substantially differ from the remedies provided by our law at the time of its enactment.

The remedy (section 63, 3) is an addition to the remedies up to that time known to our law. * * Prof. Williston who wrote the Sales Act, says in a note (42 Am. Law Rev. 900): "The rights of the seller are also enlarged as compared with his rights under the English act both by the greater freedom in rescission allowed an unpaid seller with a lien (section 61), and by the allowance of an action for the full price, even though the property in the goods has not passed, if they cannot readily be resold for a reasonable price (section 63, 3).”

The elements of an action under this section are: (1) A breach of the contract to sell goods; (2) that the property in the goods at the time of the breach has not passed; (3) that they cannot be sold for a reasonable price; (4) that the seller has offered to deliver them to the buyer; (5) that he has refused to receive them; (6) that the seller has notified the buyer that he thereafter holds the goods as bailee for the buyer.

The notification of cancellation by this defendant and his persistence in this course constituted a breach of the contract of sale. At this time the goods had not been segregated, nor marked for the buyer, nor delivered to a carrier for the buyer, and, in the absence of provision in the contract to the contrary, the property had not passed to the buyer. * *

*

The finding that there was no available market for the goods after the breach, and that jobbers and wholesalers place no orders after April for such goods, and that these goods are not goods kept in stock, but are manufactured on special order, fully shows that the goods could not be sold for a reasonable price. There was no obligation upon the manufacturer to sell these cards at retail or to the retail trade that would have involved the undertaking on its part of a new business.

* *

The plaintiff was under no obligation to separate the order, nor to attempt to sell goods for which it knew it could not obtain a reasonable price. *

*

There is no error.

SECTION 3.-SELLER'S RIGHTS AGAINST THE GOODS IN GENERAL

INTRODUCTION

Let us suppose that title to the goods has passed to the buyer, under some one of the numerous rules which heretofore have been studied, and that the seller has not been paid. What are the rights of the unpaid seller against the goods? It is very easy to think that an unpaid seller of goods, who is still in possession of them, really owns them, but under our assumption here this is not true. We are assuming a case where title has passed. It has already been shown that this is the usual case. If the bargain relates to ascertained goods in a deliverable condition, title is presumed to pass at the time the contract was made; and, if they are to be put into a deliverable condition by the seller, title will pass at the in