(3) A right of rescission (with suit for dam II. Where buyer in default unrea- A right to sue for the purchase price; B. Where Goods Have Been Delivered to Buyer or His Agent. (a) Where title has not passed: (1) Right to sue for price or damages; (2) Right to reclaim goods. (b) Where title has passed: (1) Right to stop in transit, if buyer insolvent; (2) Right to sue for price. The rights and remedies above enumerated are those provided by the Uniform Sales Act, but the arrangement and tabulation is that of the author of this series. These rights and remedies are commented on in the following sections. Sec. 84. IN GENERAL OF THESE RIGHTS AND REMEDIES. It will be noticed by the above tabulation that the rights and remedies of the seller in case of a non-delivery of the goods by him (rightfully of course), are broad enough to protect him against loss, and may consist in his appeal to the court for his damages or the purchase price; or may consist in his own act in rescinding the contract, or reselling the goods with no appeal to the court. If he has parted with the goods or if he has sold on credit, his remedy in the absence of settlement by the buyer is necessarily an appeal to the court for judgment upon the debt. Of course in such a case, if title has not passed, which is unusual (except in case of conditional sales), he may recover the goods_themselves, peaceably if he can, by law if he must. Let us consider his various rights under the different circum stances. Sec. 85. WHETHER SALE IS ON CREDIT. In determining the rights of an unpaid seller, where there has been no delivery by him, we must consider whether the sale is for cash or on credit. If on credit the seller is in default unless he delivers the goods as agreed upon. A sale may be on credit by implication, as by a prior course of dealing. In considering the rights of an unpaid seller before delivery, it is essential to ask the question whether the sale is for cash or on credit. For obviously if the sale is on credit, there is no right to call for payment before delivery. After the seller has made his contract, he cannot change his mind and insist on cash, unless in the meantime the buyer has become insolvent; in that event he may withdraw the credit. A sale may be upon credit through inference from an established course of action, that is, if credit has been previously given in former instances, the seller cannot insist on payment after he has made the sale, but would have to incorporate the new term in his contract when made. A. Where Goods Have Not Been Delivered to Buyer. (a) If title has not passed. Sec. 86. GOODS NOT DELIVERED, TITLE NOT PASSED, RIGHT TO WITHHOLD DELIVERY OR RE SCIND CONTRACT. If the title has not passed and the goods have been sold without credit, the seller may withhold delivery and may rescind the contract. What the seller may do if title has passed where price is not paid is considered hereafter. If no title has passed (according to the rules above considered) the seller may of course withhold the possession and refuse to pass the title if the price is not paid as agreed upon; assuming of course, that the sale was not to be on credit. And he may treat the contract as broken by the buyer and therefore rescind; or he may hold the buyer to damages, as will be considered, post. Sec. 87. GOODS NOT DELIVERED, TITLE NOT PASSED, RIGHT TO SUE FOR PRICE. Under the sales act, the seller may sue for the price agreed upon even though the title has not passed (1) if the price irrespective of delivery is payable on a day certain; (2) if the goods are not readily resellable at a reasonable price, providing an offer of delivery has been made to the purchaser. Text of Sales Act. "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.” 89 89. Uniform Sales Act, Sec. 63 (2). "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 inapplicable, 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.' "990 The Sales Act gives the seller a right to sue for the price even if title has not passed where the payment is to be made on a day certain. This is evidently to be construed to refer to those cases in which the buyer is to make payment or payments on a certain day or days irrespective of the transfer of title, as where advance payments on certain days are provided for. These cases would be comparatively unusual. Another case in which a right to sue for the price is given although ownership has not passed is that in which the goods cannot readily be resold for a reasonable price. There has been a difference of opinion as to this right under the decisions, for it is said that if the seller can sue for the price, this amounts to compelling the buyer to take title, and is specific performance by the seller where the buyer, if the case were turned around, could not get specific performance-certainly not in law courts. But the weight of authority, now affirmed by the Sales Act, allows the recovery of the price 91-that is, does not put the seller to a proof of his damages. In fact, many cases do not include the provision that it shall be necessary to this right that the goods be not readily resalable."2 90. Uniform Sales Act, Sec. 63 (3). 91. Dustan v. McAndrew, 44 N. Y. 72. 92. Habeler v. Rogers, 131 Fed. 43. Sec. 88. GOODS UNDELIVERED, TITLE NOT PASSED, SELLER'S RIGHT TO SUE FOR DAMAGES. If title has not passed and the buyer refuses to perform, the seller may sue for his damages. Still considering that title has not passed, and that the goods are undelivered, the buyer may sue for the damages by him sustained, that is, need not accept the election to sue for the price in cases in which we have considered, but may treat the contract as a broken contract and have his damages for the non-acceptance. Rule of Damages. The rule of damages in such cases is variously stated, but is substantially as follows: that the buyer (if he does not sue for the price, as in the last section), may recover the difference between the contract price and the market value of the goods at the time and place of delivery. That is, if he was to get 6 cents a pound by the contract and the market price is 4 cents, he may recover 2 cents per pound as his damages. 93 If there is no market price then the rule is that he may recover his actual loss, taking into consideration the value of the property on hand to the seller.94 If the buyer repudiates the sale, while the goods are yet in preparation, the seller cannot go ahead in the performance of the contract and sue for the price or his additional damages. The seller must stop at the time of repudiation, and his damages will be ascertained as of that time. Example 30. Cameron made a contract of sale with White for sale of lumber to be manufactured by Cameron. After Cameron purchased the logs, but before the 93. Habeler v. Rogers, 131 Fed. 43. 94. Habeler v. Rogers, 131 Fed. 43; Uniform Sales Act, Sec. |