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in himself, keep the goods, and sue for damages, where (1) he has reserved the right to do so; (2) the buyer is in default an unreasonable length of time.

A seller being rightfully in the possession of the goods, may, if he chooses, instead of reselling or instead of bringing suit, take back the title in himself in the cases mentioned, and that means in every case where the buyer persists in his non-performance.

Sec. 92. GOODS UNDELIVERED, TITLE PASSED, SELLER'S RIGHT TO SUE FOR PURCHASE PRICE. The seller may under the circumstances stated sue for the purchase price.

The goods being the buyer's even though the seller still is retaining the possession by virtue of his vendor's lien, the vendor may sue for the purchase price. His judgment will not destroy his lien. The buyer is of course in that event entitled to the goods upon payment of such price or judgment.

B. Where Goods Have Been Delivered to Buyer or His

Agent.

(a) Where title has not passed. Sec. 93. RIGHT TO SUE FOR PRICE OR DAMAGES. If the goods have been delivered to the buyer or his agent, and title has not yet passed, and the buyer is in default, the seller may sue for the purchase price or for damages.

Here is a situation that would occur comparatively seldom, except in conditional sales. It is unusual for delivery to be made to the buyer before title has passed. Almost always title has passed at least at the delivery. If a seller who has not delivered may sue where the title has not passed, it would follow logically that a seller who has made delivery would be in no worse position.

Sec. 94. GOODS DELIVERED, TITLE NOT PASSED, BUYER IN DEFAULT, RIGHT OF SELLER TO RECLAIM GOODS. A seller may reclaim goods if title has not passed where the buyer is in default.

Assuming the unusual situation of the buyer having the goods and the title not having passed, and the buyer being in default, the seller can obviously recover the property unless there has been an agreement to the contrary. Let us consider the case of a seller of goods who has made delivery but has reserved title for purposes of security.

Sec. 95. SAME SUBJECT (CONDITIONAL SALES). In a conditional sale, the buyer may retake the same without court action if he may do so peaceably, or by an action of replevin; some courts holding that he may retain what has been paid; some that he must repay what has been paid, unless it has been agreed to the contrary. Or he may sue for the price, letting the buyer retain the goods.

The law of conditional sale is not in a satisfactory and uniform state as shown by the decisions. In all courts the seller may enforce the sale by a suit for the price; but if he attempts to reclaim the goods, which is his right conceded everywhere, there is a difference of opinion whether he must account for what he has received. Some courts hold he need not. 96

If the contract pro96. Fleck v. Warner, 25 Kan. 492; Latham v. Sumner, 89 Ill. vides for retention of payments as liquidated damages, as is generally the case, and such a provision is a fair one, it would seem enforceable anywhere.97

(b) Where title has passed.

Sec. 96. GOODS DELIVERED, TITLE PASSED, BUYER IN DEFAULT. In this case the seller's remedy is to sue for the price; he has no right to reclaim the goods.

One who has sold goods and delivered them to the buyer, thereby extending credit, either pursuant to the original contract or by waiving his rights to cash payment, has the remedy simply of suing for the price if the buyer will not pay it. He cannot reclaim the goods. He has been contented to take the credit of the buyer and has passed the title to him in return therefor. His ownership is gone and he has no lien. He must sue for the price.

Sec. 97. RIGHT TO STOP IN TRANSIT. A seller notwithstanding he has delivered the goods to a carrier for transmission to the buyer under circumstances that pass the title to the buyer and amount to a delivery to the buyer, so that the seller's lien is gone, may nevertheless in case of insolvency of the buyer re-attach that lien if he does so while the goods are still in transit and before any third party has purchased them or acquired a lien upon them.

Though it has been noted, the carrier is the agent of the buyer except where specially agreed otherwise, and therefore delivery to such carrier is delivery to the buyer, and property passes, yet the common law has extended

97. See Williston on Sales, Sec. 579.

the lien of a seller to the goods during transit in case the buyer becomes insolvent; not otherwise.

The right ceases when the transit is ended and the carrier has made delivery to the buyer.98

The right is exercised by notifying the carrier of the insolvency and requesting it to hold the goods. The carrier then will deliver the goods to the buyer at its peril.

If before the exercise of the right the buyer has sold the goods by a transfer of the bill of lading, the right of stoppage cannot be asserted against the innocent purchaser.

98. Re W. A. Patterson Co., 186 Fed. 629.

CHAPTER 12.

RIGHTS OF BUYER UPON NON-PERFORMANCE.

Sec. 98. ENUMERATION OF RIGHTS AND REMEDIES OF BUYER.

A. Where Goods Have Not Been Delivered to Buyer. (a) Where title has not passed:

(1) Right to damages;
(2) Right to specific performance in certain

cases.

(b) Where title has passed:

(1) Right to obtain goods themselves;
(2) Right to sue for damages.

B. Where Goods Are Delivered or Tendered to Buyer. (a) Right to refuse acceptance for breach of war

ranty, late delivery or other breach of contract; (b) Right to reject after trial; (c) Right to accept and sue for breach of warranty; (d) Right to accept and sue for tardy delivery.

In this enumeration of rights and remedies of the buyer it is of course assumed that the seller is in de

fault.

A. Where Goods Have Not Been Delivered to Buyer.

(a) Where title has not passed. Sec. 99. GOODS NOT DELIVERED, TITLE NOT PASSED, BUYER'S RIGHT TO SUE FOR DAMAGES.

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