September 17, 1908, Manley directed the Paterson Company to ship these vehicles to him at St. Louis, Missouri. On October 3, 1908, the Paterson Company shipped the vehicles from Flint, Michigan, by rail to Manley at St. Louis. The company procured a bill of lading naming it as consignor and Manley as consignee. The Paterson Company sent the bill of lading to Manley, with the invoice of the goods indicating that the goods were sold to Manley for $1,018.75. On the arrival of the vehicles at St. Louis, on October 7, 1908, Manley sent his clerk to the office of the St. Louis & San Francisco R. R. Co. at St. Louis, and he, by direction of Manley, surrendered the bill of lading to the railroad company, which issued, by direction of Manley, a bill of lading wherein Manley was named as consignor and Elder & Wood, Mammoth Springs, Arkansas, as consignees. Under this bill of lading, the goods were forwarded to Mammoth Springs, and Manley sent an invoice of the vehicles to Elder & Wood which indicated a sale from him to them for $1,304.25. On October 10, 1908, Manley made a general assignment for benefit of creditors. On October 13, 1908, the Paterson Co. and other creditors of Manley filed an involuntary petition in bankruptcy against him, upon which he was subsequently adjudged a bankrupt. On the same day the Paterson Co. telegraphed from Flint, Michigan, to the agent of the St. L. & S. F. R. R. Co. at Detroit, Michigan, to hold the car of vehicles for it, and at some time after October 14, 1908, the railroad company returned the vehicles to that company. The Paterson Co. filed a claim against the bankrupt for $17,017.45 for the purchase price of vehicles which it had sold to Manley prior to the transaction in question, and this claim was allowed. Thereafter a motion was made by the trustee to expunge this claim unless the Paterson Co. would pay back to the trustee the value of this carload of vehicles, which it obtained after the petition in bankruptcy was filed. This motion was granted and the Paterson Company appeals.

Point Involved: When the transit ceases during which the right of stoppage may be exercised.

SANBORN, CIRCUIT JUDGE: the facts above given.]

66#

[After reciting

"But the right of stoppage in transitu ceases when the transit between the vendor and purchaser ends. The Paterson Company sold the vehicles to Manley. It sent to Manley the bill of lading, which named him as consignee, and thereby gave him dominion and control over the goods, and it invoiced them to him as the purchaser. It never sold the goods to Elder & Wood, and was not in any way in privity with them. Therefore, when Manley's clerk, by his direction, surrendered the bill of lading to the St. Louis & San Francisco Railroad Company at St. Louis, the destination named in the bill, and reshipped and rebilled them to Manley's purchaser, Elder & Wood, the transit between the Paterson Company and its vendee, Manley, ended and the right of stoppage in transitu ceased. A. J. Neimeyer Lumber Co. v. Burlington & M. River R. Co., 54 Neb. 321, 341, 342, 40 L. R. A. 534, 74 N. W. 670; Eaton v. Cook, 32 Vt. 59, 61; Rowley v. Bigelow, 12 Pick. 307, 313, 314, 23 Am. Dec. 607; Memphis & L. R. R. Co. v. Freed, 38 Ark. 614, 622; Treadwell v. Aydlett, 9 Heisk. 388."

Question 359: (1) State this case.

(2) A sells goods to B, and sends them by freight to C, a forwarder employed by B to send them on to a further point when so ordered by B. B becomes insolvent while the goods are in C's possession. A attempts to exercise his right to stop. Are the goods still in transit? (Biggs v. Barry, Fed. Cas. 1402.)

(c) Resale by Seller; Right of Seller to Sue for Purchase Price.

Case 360. Bagley v. Findlay, 82 Ill. 524.

Facts: Suit by Findlay, as seller, against Bagley, as buyer, of certain goods for damages for refusing to receive the goods, the seller having tendered delivery to the buyer. Part of the goods were in Milwaukee and part in Chicago. After the buyer refused to accept the goods, the seller gave notice that he would proceed to resell them and held the buyer responsible for the loss. The net

proceeds of the resale fell short of the contract price by $1,629.86, not including $402.62 expenses for commissions and charges. Judgment was entered for $1,629.86, and defendant appeals.

Point Involved: The remedies of the seller where buyer refuses to take the goods; right of resale.

MR. JUSTICE DICKEY: "When a vendee of goods, sold at a specific price, refuses to take and pay for the goods. the vendor may store the goods for the vendee, give him notice that he has done so, and then recover the full contract price, or he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery, and this means the market price of such goods in such condition and in such quantity as the goods were at the time for delivery. In such case, if goods are bought in large quantities, the market price at retail is not the standard, but the market price in large quantities; or the vendor may, giving notice to the vendee, proceed to sell the goods, in their then condition and quantity, to the best advantage, and recover of the vendee the loss, if the goods fail to bring the amount of the contract price. The appellee adopted the latter course, and the only question of fact presented is, were the goods sold to the best advantage?

"In such case, the vendor takes the position of agent for the vendee, and is held to the same degree of care, judgment and fidelity that is imposed by the law upon an agent put in the custody of such goods in such condition, with instructions to sell them to the best advantage.

"Without reviewing the evidence in this case, it is sufficient for us to say that the evidence fully sustains the finding of the Court-that the goods were fairly sold, with reasonable diligence, judgment and care.

"Appellant insists that the sale must, in such case, be in the market where the goods are, and objects that the goods stored in Milwaukee were sold in Chicago. The

purchaser was found in Chicago, but he bought the goods in their then condition in store in Milwaukee, and if these goods were taken to Chicago at all, it was after the sale.

"The appellant has no just cause of complaint against the finding of the Court. Upon the evidence shown in the record, the Court below might, without impropriety, have included in the assessment of damages the $402 expenses incurred by the appellee for commissions and charges incurred in making the sale.

"Judgment affirmed."

Question 360: State the rule of damages as decided in this

case.

CHAPTER 47

RIGHTS OF BUYER UPON NON-PERFORMANCE

§§ 386 to 391. (Sales, Sections 99 to 104.) (Cases following note.)

(Note: The following is a tabulation of the rights of the buyer, where the seller is in default.)

The Rights and Remedies of the Buyer.

1. Goods not delivered, title not passeȧ, seller in default, right to sue for damages. The buyer may sue for damages in this situation. The Sales Act, Sec. 67 provides:

"(1) Where the property in the goods has not passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery.

"(2) The measure of damages is the loss directly and naturally resulting in the ordinary course of events, from the seller's breach of contract.

"(3) Where there is an available market for the goods in question the measure of damages in the absence of special circumstances showing proximate damages of a greater amount is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or if no time was fixed then at the time of the refusal to deliver."

2. Goods not delivered, title not passed, seller in default, buyer's right to specific performance. This is an unusual remedy. See subject in contracts.

3. Title passed, goods not delivered, seller in default, buyer's right to sue for goods themselves. As, by hypoth