May vendor resell if buyer continues in default? § 782. WE have seen that the vendor has no right to rescind the sale when the buyer is in default for the payment of the price, (a) and this suggests at once other important questions. What is a vendor to do if the buyer, after notice to take the goods and pay the price, remains in default? Must he keep them until he can obtain judgment against the buyer and sell them on execution? What if the goods are perishable, like a cargo of fruit; or expensive to keep, as cattle or horses? May the vendor resell? And if so, under what circumstances and with what legal effect? Before attempting to give an answer to these questions, let us see how the law stood when Blackburn on Sales was published, in 1845. The following is the Law as stated in Blackburn on Sales. statement of the learned author: "Assuming therefore what seems pretty well established, that the vendor's rights exceed a lien, and are greater than can be attrib (a) Ante, § 764. uted to the assent of the purchaser under the contract of sale, the question arises, how much greater than a lien are they? and this is a question that in the present state of the law no one will venture to answer positively, but, as has already been said, the better opinion seems to be that in no case do they amount to a complete resumption of the right of property, or in other words, to a right to rescind the contract of sale, but perhaps come nearer to the rights of a pawnee with a power of sale, than to any other common law rights. At all events, it seems that a resale by the vendor, while the purchaser continues in default, is not so wrongful as to authorize the purchaser to consider the contract rescinded, so as to entitle him to recover back any deposit of the price, or to resist paying any balance of it still due; nor yet so tortious as to destroy the vendor's right to retain, and so entitle the purchaser to sue in trover." (b) the point Review of Right cannot exist der of authorities. after ten price by buyer. Nor before default. buyer's § 783. There has been a great deal of authority on since the publication of Blackburn on Sales, and it will be convenient first to refer succinctly to the decisions cited by that learned author. Martindale v. Smith (c) may be at once distinguished from all the other cases cited, by the circumstance that the resale in that case was made after the buyer had tendered the price, a proceeding to which no countenance has been given by any dictum or any decided case. To the latter case of Chinery v. Viall, (d) to be examined post, the same remark applies, the vendor having resold before the buyer was in default. In Langfort Langfort v. Tiler, (e) Holt C. J. ruled, in 1705, that v. Tiler. "after earnest given, the vendor cannot sell the goods to another without default in the vendee, and therefore if the vendee does not come and pay and take the goods, the vendor ought to go and request him, and then if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." (f) We have already seen that by the law as now settled the agreement (b) Blackburn on Sales, 325. (c) 1 Q. B. 395. (d) 5 H. & N. 288; 29 L. J. Ex. 180. (e) 1 Salk. 113, cited by Lord Ellenborough in Hinde v. Whitehouse, 7 East, 571, and by Littledale J. in Bloxam v. Sanders, 4 B. & C. 945. (f) [See Neil v. Cheves, 1 Bailey (S. C.), 537; 2 Kent, 495; Girard v. Taggart, 5 Serg. & R. 19; Dibble v. Corbett, 5 Bosw. (N. Y.) 202; Newhall v. Vargas, 15 Me. 314, 325, 326; Heffernan v. Berry, 32 U. C. Q. B. 518.] Hore v. Mertens v. is not dissolved according to the dictum in this old case. (g) In Hore v. Milner, (h) at nisi prius in 1797, Lord Kenyon Milner. held that a vendor who had resold had estopped himself from alleging the contract to have been an executed bargain and sale, and could only recover on a count for damages, as on an executory agreement. In Mertens v. Adcock, (i) in 1813, Lord Ellenborough held, in a case of goods sold at auction, with deposit of part of the price, and express reservation of power to resell, that the resale was not a rescission of the contract, and that the vendor might recover on a count for goods bargained and sold. This case has since been overruled. overruled. See Lamond v. Davall, § 786, infra. In Hagedorn v. Hagedorn v. Laing. Laing (k) the common pleas expressed a doubt of the correctness of Lord Ellenborough's ruling, in cases where there is Greaves v. an express reservation of the power to resell. In Greaves Ashlin. v. Ashlin, () in 1813, the facts were, that the defendant sold the plaintiff fifty quarters of oats at 458. 6d., and resold them on the buyer's default, at 518. per quarter. Lord Ellenborough held the sale not to be rescinded by the resale, and the plaintiff recovered the profit on the resale. Maclean v. § 784. Next came Maclean v. Dunn, in 1828. The vendor in that case resold the goods at a loss, after repeated reDunn. quests that the buyer would take them. Best C. J. gave the decision of the court, that the original sale was not thereby rescinded, and that the buyer might be sued in assumpsit on the original contract; and the reasoning was as follows: "It is admitted that perishable articles may be resold. It is difficult to say what may be considered as perishable articles and what not; but if articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another. It is a practice, therefore, founded on good sense, to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it except on the authority of decided cases. Those which have been decided do not apply. We are anxious to (g) [See Newhall v. Vargas, 15 Me. 314, 325.] (h) 1 Peake, 42, note (58, note, in ed. 1820). (i) 4 Esp. 251. (k) 6 Taunt. 162. (1) 3 Camp. 426. confirm a rule consistent with convenience and law. It is most convenient that when a party refuses to take goods he has purchased, they should be resold, and that he should be liable to the loss, if any, upon the resale. The goods may become worse the longer they are kept, and at all events there is the risk of the price becoming lower." (m) In Blackburn on Sales it is said of this case, that "the dictum of the court goes to the extent that the resale was perfectly legal and justifiable; probably it may be so, but there has never been a decision to that extent. (n) Milgate v. Kebble. § 785. In Acebal v. Levy (0) the common pleas, in 1834, when Best C. J. had been succeeded by Tindal C. J., and Acebal v. when Vaughan, Bosanquet, and Alderson JJ. had be- Levy. come members of the court, subsequently to the decision in Maclean v. Dunn, said that it was unnecessary to decide "whether the plaintiff can or cannot maintain the count for goods bargained and sold, after he has resold the goods to a stranger, before the action brought, a question which does not go to the merit, but is a question as to the pleading only, for there can be no doubt but that the plaintiff might, after reselling the goods, recover the same measure of damages in a special count framed upon the refusal to accept and pay for the goods bought." (p) In Milgate v. Kebble, (q) decided in the common pleas, in 1841, the plaintiff brought trover upon the following facts. The defendant sold to the plaintiff his crop of apples for 381., cannot to be paid by instalments before the buyer took them trover. away. The buyer paid 337. on account, and gathered the apples on the 1st October, leaving them in the defendant's kiln. On the 27th December, the defendant wrote to the plaintiff a notice to pay for them and take them away, and this not being done, the defendant resold the apples for 6l. on the 22d January. The jury found that a reasonable time had not elapsed before the resale, and gave a verdict for 51. damages to the plaintiff. On leave reserved, a motion for nonsuit was successful, on the ground that the vendor's right of possession was not lost, so as to enable the (m) 4 Bing. 722; [Newhall v. Vargas, 15 Me. 314.] (n) Blackburn, p. 337. (0) 10 Bing. 376. (p) [See Newhall v. Vargas, 15 Me. Vendee in default maintain (7) 3 M. & G. 100. See, also, Bloxam v. Sanders, 4 B. & C. 948, and Felthouse v. Bindley, 11 C. B. N. S. 869; 31 L. J. C. P. 204; ante, § 40. sanet. plaintiff to maintain trover against him. In this case, Tindal C. Fitt v. Cas- J. said the buyer was in the condition of a pledger, who cannot bring trover. In Fitt v. Cassanet (r) the subject again came before the same court, in 1842, but the facts did not require a direct decision on it, though the judges all assumed it to be settled law that a resale would be legal, after a refusal to accept on the part of the purchaser. Thus stood the authorities in 1845, and one of the points in dispute was settled very speedily afterwards. Davall. A resale in with a right expressly reserved re original sale. § 786. In Lamond v. Davall, (8) decided in 1847, the vendor Lamond v. brought assumpsit for shares bargained and sold, and sold and delivered. At an auction sale the defendant accordance had become the buyer, at 797., of certain shares, one of the conditions of the sale being that the goods might be resold unless the purchase-money was paid on the folscinds the lowing day, the bidder so making default being answerable for the loss on the resale. The vendor resold for 631. Erle J. nonsuited the plaintiff, on the ground that this reservation of the power of resale was in effect a condition for making void the sale on default of the buyer, and that the actual resale had rescinded the original contract, so that assumpsit could not be maintained on it. This nonsuit was upheld after advisement, the court overruling Mertens v. Adcock (t) and confirming the dictum of Gibbs C. J. in Hagedorn v. Laing. (u) Lord Denman C. J. said: "It appears to us that a power of resale implies a power of annulling the first sale, and that therefore the first sale is on a condition, and not absolute. There might be inconvenience to the vendor if the resale was held to be by him as agent for the defaulter, and there is injustice to the purchaser in holding him liable for the full price of the goods sold, though he cannot have the goods, and though the vendor may have received the full price from another purchaser. This inconvenience and injustice would be avoided by holding that the sale is conditioned to be void in case of default, and that the defaulter in case of resale is liable for the difference and expenses. . . . . In Maclean v. Dunn (x) the action for damages for the loss on resale is spoken of as the proper course, where the power of resale is exercised (r) 4 M. & G. 898. (t) 4 Esp. 251. (u) 6 Taunt. 162. |