brought suit against Andreis for the agreed price, and recovered judgment for the full amount. Plaintiff claims title to the goods under an alleged purchase from Andreis subsequent to the entry of the above judgment.

That title to these goods passed to defendant at the time of their delivery to it under the original agreement with Andreis seems clear. On the latter's refusal to take back the goods and pay the agreed invoice price and duty paid, defendant could rescind and sue for the difference between the agreed price and their value as damages (section 142, Sales Act; * * * ), or treat the goods as belonging to Andreis and sue to recover the contract price. If it elected to pursue the former course, title remaining in it, plaintiff took nothing by the assignment from Andreis and cannot recover. As matter of fact, it chose the latter, as an examination of the judgment roll introduced in evidence shows. In thus suing it treated Andreis as a vendee, and was entitled to a vendor's lien until the purchase price was paid,

** unless it had lost the right to assert the lien, either (1) by an agreement to release it, which must have been a valid agreement for a consideration; or (2) by representations which had estopped it from asserting a lien; or (3) by acts so inconsistent with the lien as to show an election on its part to waive the lien and rely on another and inconsistent right or remedy.

As to any agreement, the only possible evidence was the alleged statements that the goods were at Mr. Andreis' disposal. These were without consideration, and could not constitute a valid agreement. They could not work an estoppel, as for that purpose it is essential to show that the representations were made to the person asserting the estoppel, that they were intended to be relied on, and were in fact relied on, and a change of position. There is nothing to show here that they were made to plaintiff, or intended for him, or that he ever heard of or relied thereon.

The suit brought against Andreis was not a waiver of the lien. * * * It is no more inconsistent with, or a waiver of, a lien than a suit on a note secured by collateral, or on a bond secured by a mortgage. There was, therefore, no evidence of waiver, and plaintiff's request to go to the jury on that question was properly denied, and the direction of a verdict for defendant was proper. Judgment affirmed.

* *

WRIGHT v. FRANK A. ANDREWS CO., Inc.

(Supreme Judicial Court of Massachusetts, 1912. 212 Mass. 186, 98 N. E. 798.) Action by William B. Wright against the Frank A. Andrews Company, Incorporated. There was a judgment for plaintiff, and defendant brings exceptions.

SHELDON, J. The jury could find that the plaintiff purchased a particular diamond of the defendant, the title to which at once passed to the plaintiff, but that he left it with the defendant to be set in a ring, for the whole price of $500, of which he paid down the sum of $100. They also could find that the stone was set in the ring to his satisfaction and acceptance, and that the defendant then retained it until he should make full payment therefor. The plaintiff, as it could be found, could not then pay the residue of the price, and after a con

siderable delay made an offer to the defendant to rescind the purchase and take back what he had paid; but the defendant did not accept this offer. After still further delay he tendered the balance due to the defendant and demanded the ring, and the defendant merely answered that it did not then have the ring but could get it. By the tender, any lien which the defendant had upon the ring was ended, and the plaintiff was entitled to immediate possession thereof, as could be found, but the defendant refused to give it to him. If so, he was entitled to maintain an action for its conversion. * * *

Nor were the jury bound to find that the defendant had rescinded its contract with the plaintiff for his delay in making full payment, even if it could have done so. It never had returned or offered to return the payment which the plaintiff had made; nor as could have been found, had it availed itself of any one of the remedies which his default left open to it. * * It may be assumed that it had a vendor's lien for the unpaid purchase money. * * * But this was perfectly consistent with, and indeed presupposed, a general right of property in the plaintiff, and would be ended by the plaintiff's tender. Nor was the tender invalid because it did not include interest which was not shown to have been due.

Accordingly a verdict for the defendant could not have been ordered. * * *

Exceptions overruled.

SECTION 5.-RIGHT OF RESALE

Obviously the bare right to hold the goods does not protect the seller sufficiently, for, if the buyer is intending never to pay for the goods, the seller will either desire to sell them to other persons or to use them himself. If all the seller has is a right to hold the goods, a sale by him to a third party or the use of them would amount to a conversion of the buyer's goods. We must not lose sight of the fact that title is really in the buyer in all of these cases. Clearly the law would not stop with giving the unpaid seller a mere right to continue in possession. In fact, wherever we find a lien, whether in the law of sales or other branches of the law, we will discover that the law prescribes a certain procedure whereby the lienholder may convert his lien into money or into an absolute ownership in himself. In the law of mortgages of land, every one is more or less familiar with the foreclosure suit. The term "foreclosure suit" merely describes the procedure by which the mortgagee, who has, by virtue of his mortgage, a lien on the land, has the right to have the land sold, and the proceeds arising from the sale paid over by the officer of the court who made the sale, to the mortgagee. So, also, where a pledgee of personal property may, by following out certain other, but similar, rules, obtain a sale of the goods and the right to apply the proceeds on the debt due him. Railroad companies have liens on freight to secure freight charges, and the company has a right, upon certain conditions and by following the prescribed procedure, to sell the goods and to apply the money on the debt.

Liens arise in a great many ways, but the point here sought to be made is that the law does prescribe some method by which the holder of the lien will be able to convert that right into money. The steps necessary to bring about this result vary according to the circumstances under which the lien arose. Accordingly in the law of sales we find special rules which the seller must follow, if he desires to sell the property or to resume his ownership in it. The most distinctive feature is that the buyer need not begin any action in court, as is necessary in enforcing a mortgage lien on land. The lien, given to the unpaid seller, is thus seen to be the real basis for the other two rights-of resale and of rescission. The latter two are derivative.

Sales Act, Section 60. (1) Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or having stopped the goods in transitu may resell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or the sale or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale.

(2) Where a resale is made, as authorized in this section, the buyer acquires a good title as against the original buyer.

(3) It is not essential to the validity of a resale that notice of an intention to resell be given by the seller to the original buyer. But where the right of resale is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer has been in default an unreasonable time before the resale was made.

(4) It is not essential to the validity of a resale that notice of the time and place of such resale should be given by the seller to the original buyer.

(5) The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private sale.

The first point that should be noticed in connection with this section is that the unpaid seller, in reselling the goods, is not selling his own goods. He is selling the goods of the buyer. The above section does not say that the unpaid seller, in making a resale, is doing so as owner of the goods. These sections merely give to the unpaid seller the legal power and legal privilege to sell the buyer's own goods and to pass a title to the buyer at the resale, which sale will be effective as against the claims of the original buyer. The distinction between selling as owner and selling, in a sense, as agent for the buyer, may sometimes affect the amount of the damages which the seller will be allowed to recover from

the buyer after the resale. We should recall that the circumstances are such, title being in the buyer, that the seller has the right to sue the seller for the amount of the purchase price. Let us suppose, in a particular case, that this amount is $1,000. The unpaid seller, instead of suing for the price, resells them strictly in accordance with this section, and obtains $900 for the goods on the resale. Suppose, also, that the market price was $950. When the seller sued the buyer, after the resale, he would recover the difference between the contract price, $1,000, and the amount obtained at the resale, $900-i. e., he would recover $100. If he had resold as owner, then the seller, in his subsequent suit against the buyer, would recover the difference between the contract price of $1,000 and the market price of $950, or $50. The resale fixes the amount of damage which may be recovered from the buyer.

There is this further difference between selling as owner and selling the purchaser's goods. The seller may add to his damages the expense to which he was put in selling the goods, and may also recover the cost to which he was put in keeping the goods from the time when the buyer was first under a duty of paying for the goods and the date of the resale.

From the business point of view, the important things to keep in mind are: First, that the right to resell does not arise until the buyer has been in default an unreasonable time. If a seller undertakes to resell on the first day after the buyer was under an obligation of paying the price, he is very likely to find that the law, instead of sanctioning the resale, will say that the act was a tortious conversion of the buyer's goods, and accordingly the seller will be liable to the buyer for all damages sustained thereby by the latter. There is one exception, noted in the section, where the seller is not obliged to wait until the buyer is in default an unreasonable time; i. e., when the subject of the sale was of a perishable nature. The reason for such exception is apparent. On the general question, how long must the seller wait? no satisfactory answer can be laid down in general terms. The circumstances of the case will in general indicate what constitutes an unreasonable time. In this connection the seller should not put very much reliance upon the rule stated in the section, which relieves him from the necessity of giving the buyer notice of the time and place of sale. That clause is by no means a dead letter, but at the same time it is decidedly to the interest of the seller to give such notice to the buyer of the time and place of sale. This gives an opportunity, and a fair one, to the buyer to protect himself. If notice is not given under circumstances where it could have been given, this carries with it suggestions that the seller may be attempting to take an unfair advantage of the buyer. For these reasons notice should be given. Before the adoption of the Sales Act, and in some of the states where it has not been enacted, the law requires notice to be sent to the buyer.

In the second place, the seller should take note of the direction

that he exercise reasonable care and judgment in making a resale. In connection with the circumstances of a particular transaction, this requirement may mean a good deal. The law will not permit an unpaid seller deliberately to resell the goods at a great sacrifice when a better price could have been obtained. If it proves to be an unfair sale, the seller will not be allowed to recover from the buyer any more than the difference between the contract price and the market price. If the sale is a fair one, he will recover the difference between the contract price and the amount which the goods brought at the resale.

SECTION 6.-RIGHT OF RESCISSION

The third and last right which the unpaid seller has against the goods is the right of rescission. This word is often used to express the idea that a party to a contract is excused from performing his obligation thereunder, if the other party has materially broken his promise. The term should not be used in this sense. When used in connection with a contract, rescission means some act which has the legal effect of totally destroying the legal relations between the parties to a contract or to some part thereof. What is the relation of the parties after destruction of these relations? As was shown in Chapter X of Contracts, the parties are in the same position that they were in before they entered into the contract. Any suit between the parties subsequent to a rescission of the entire contract is for the sole purpose of putting the parties in the same financial or proprietary position which they occupied just before they entered into contract relations. Such a lawsuit has a different object from an action brought on the contract to recover damages for its breach. An action to recover damages for the breach of a contract seeks to put the plaintiff, party not in default, in the same position he would have been in if the contract had been performed. An action following a rescission of a contract because of default, or for any other reason, seeks to put the plaintiff, not where he would have been if the contract had been performed, but to put him in the same position which he held before he entered into the contract which is now rescinded. One cannot sue upon a contract which has been totally rescinded. If but a part of it has been rescinded, the remaining portion is sufficiently alive to support an action upon it.

The Sales Act gives the unpaid seller two powers of rescission: (1) Power to rescind the transfer of title; and (2) power to rescind the entire contract. These sections are as follows:

Section 61. (1) An unpaid seller having a right of lien or having stopped the goods in transitu may rescind the transfer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where