is paid down." In Martindale v. Smith, (z) however, as we have where the point was raised and determined after Martindale seen, v. Smith. consideration by the queen's bench, whether the vendor had a right to reinvest the property in himself by reason of the vendee's failure to pay the price at the appointed time, the court conclude the expression of a very decided opinion in the negative by the statement, "The vendor's right, therefore, to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, not a right to rescind the bargain.” (z1) In Valpy v. Oakeley, (a) where the assignees of the bankValpy v Oakeley. rupt sued the defendant in assumpsit for non-delivery of goods brought by the bankrupt, of which the defendants stopped delivery after the bankrupt had become insolvent, although they had received from him acceptances for the price, the court held that when the bills were dishonored, the parties were in the same position as if bills had never been given at all. It did not hold the contract rescinded, but decided that the assignees were entitled to recover the value of the goods less the unpaid price, that is, merely nominal damages unless the market has risen. And this case was followed by the same court in Griffiths v. Perry, (b) in which, under similar circumstances, it was held that the vendor's right was a right similar to that of stoppage in transitu (that is to say, that the vendor need not go through the idle form of putting the goods into a cart and then taking them out, but had the right to retain them by a quasi stoppage in transitu), and the court gave to the assignees of the bankrupt nominal damages for the vendor's stoppage of the delivery; a judgment only possible on the theory that the contract had not been rescinded. Griffiths v. Perry. § 868. But the strongest ground for holding the question to be This is set- now at rest is, that courts of equity have assumed regutled in the lar jurisdiction of bills filed by vendors to assert their equity decisions. right of stoppage in transitu, -a jurisdiction totally incompatible with the theory of a rescission of the contract; for if the contract was rescinded, there would be no privity in a court of equity between the parties. This was pointed out by Lord Cairns, in Schotsman v. The Lancashire & Yorkshire Railway Com (z) 1 Q. B. 389. (z1) [Rucker v. Donovan, 13 Kansas, 251.] (a) 16 Q. B. 941; 20 L. J. Q. B. 380. pany; (c) and in that case both his lordship and Lord Chelmsford declared that they entertained no doubt of the jurisdiction of a court of equity, in the case of a bill filed, to enforce the vendor's right of stoppage. In the United States it has also been decided that the legal effect of the stoppage in transitu America. is to entitle the vendor to enforce his right to be paid the price, not to give him the power to rescind the sale. (d) (c) L. R. 2 Ch. App. 332. (d) Cross v. O'Donnell, 44 N. Y. 661. [The right of stoppage in Stoppage is lien extransitu is nothing more than tended. the extension of the right of lien which by the common law the vendor has upon goods for the price, originally allowed in equity, and subsequently adopted as a rule of law. Shaw C. J. in Rowley v. Bigelow, 12 Pick. 313, and in Grout v. Hill, 4 Gray, 361, 366; Jordan v. James, 5 Ham. 98; 2 Kent, 541; Rogers v. Thomas, 20 Conn. 53; Chandler v. Fulton, 10 Texas, 2; Newhall v. Vargas, 13 Maine, 93, 104; S. C. 15 Ib. 315; Hunn v. Bowne, 2 Caines, 38, 42; Atkins v. Colby, 20 N. H. 154, 155. It has been decided in several cases in the American states, that the stoppage in transitu does not of itself recontract. scind the contract of sale, but only places the parties in the same situa Effect of stoppage upon the tion, as nearly as may be, in which they La in would have been if the vendor had not parted with the possession. Newhall v. Vargas, and other cases above cited; Stanton v. Eager, 16 Pick. 475. The vendor, in exercising this right of stoppage, does not take possession of the goods as his own, but as the goods of the purchaser, on which the vendor has a lien for his unpaid purchase-money. If the purchaser has paid part of the price he cannot recover it back while the vendor, having regained the possession, is still willing to deliver the goods on payment of the balance. If the purchaser refuses to pay the balance, the vendor may, after notice and a reasonable time allowed to pay for and take the goods, resell them, and apply the proceeds to the payment of the price; and should a balance remain unpaid the vendor may recover it of the purchaser. Newhall v. Vargas, supra; Abbott Ship. (6th Am. ed.) 516.] §869. THE breach of contract of which the buyer complains may arise from the vendor's default in delivering the goods, or from some defect in the goods delivered; there may be a breach of the principal contract for the transfer of the property and delivery of possession, or the collateral contract of warranty either of quality or title. The buyer's right to avoid the contract for mistake, failure of consideration, fraud, or illegality, has been discussed in book III. of this treatise. There remain therefore for consideration, 1st. The remedies of the buyer before obtaining possession of the goods sold; which must be subdivided into cases where the contract is executory only, and cases where the prop- illegality. erty has passed. 2dly. The remedies of the buyer after having taken actual possession of the goods. Right to avoid the contract for misure of consideration, take, fail fraud, or WHERE THE CONTRACT IS EXECUTORY. Only rem edy is ac tion for the breach of contract. § 870. Where by the terms of the contract the property has not passed to the buyer in the thing which the vendor has agreed to sell, it is obvious that the buyer's remedy for the breach of the vendor's promise is the same as that which exists in all other cases of breach of contract. He may recover damages for the breach, but has no special remedy growing out of the relations of vendor and vendee. The damages which the buyer may recover in such an action are in general the difference between the contract price and What damthe market value of the goods at the time when the contract is broken, (a) as explained by Tindal C. J. in the cover. (a) [See Clement & Hawkes Manuf. Co. v. Meserole, 107 Mass. 362; Cutting v. Grand Trunk Railway Co. 13 Allen, 381; Deming v. Grand Trunk Railway Co. 48 N. H. 455; Gordon v. Norris, 49 Ib. 376; ages buyer may re Furlong v. Polleys, 30 Me. 493; Kountz v. Kirkpatrick, 72 Penn. St. 376; Chadwick v. Butler, 28 Mich. 349; McKercher v. Curtis, 35 Ib. 478; M'Dermid v. Redpath, 39 Ib. 372; Colton v. Good, 11 U. C. opinion delivered in Barrow v. Arnaud, cited ante, § 758; and numerous instances of the application of this rule are to be found Damages in the reported cases. (b) But the law distinguishes the general or special. damages which may be claimed on a breach of contract, Rule of damages for not delivering and not accepting. Q. B. 153; Smith v. Mayer, 3 Col. 207; Miles v. Miller, 12 Bush, 134; Koch v. Godshaw, Ib. 318; Knibs v. Jones, 44 Md. 396; Kemple v. Darrow, 7 J. & Sp. 447; Parsons v. Sutton, 66 N. Y. 92; Cahen v. Platt, 69 Ib. 348; O'Neill v. Rush, 12 Ir. L. R. 34; Watrous v. Bates, 5 U. C. C. P. 367. "The rule of damages in respect to the non-delivery of merchandise is the difference between the agreed price and that at which the merchandise could be sold, when the action is against the vendee for not accepting; and when against the vendor for not delivering, the value of the article on the day when it should have been delivered. The value-of the article on the day of delivery forms the most direct method of ascertaining the measure of indemnity." Ingraham J. in Whelan v. Lynch, 65 Barb. 329; Dana v. Fiedler, 12 N. Y. 40. But when the market price of an article is unMarket price naturally inflated by unlawful not always means, it is not the true critrue value. terion of the value of that article, and does not furnish the means of ascertaining the measure of damages for non-delivery of it. This point is very ably discussed, and the cases cited, by Agnew J., in Kountz v. Kirkpatrick, 72 Penn. St. 376, who concluded his examination of the cases by saying: "I think it is conclusively shown that what is called the market price, or the quotations of the articles for a given day, is not always the only evidence of the actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day had been unnaturally inflated." See the remarks of Nelson C. J. in Smith v. Griffith, 3 Hill, 337, 338; Wilson v. Davis, 5 Watts & S. 523; Hopkinson J. in Blydenburg v. Welsh, Baldw. Rep. 331; Andrews v. Hoover, 8 Watts, 239; Strong J. in Trout v. Ken nedy, 47 Penn. St. 393; Cole v. Cheovenda, 4 Col. 17; Stark v. Alford, 49 Tex. 260.] (b) Boorman v. Nash, 9 B. & C. 145; Valpy v. Oakeley, 16 Q. B. 941; 20 L. J. Q. B. 381; Griffiths v. Perry, 1 E. & E. 680; 28 L. J. Q. B. 204; Peterson v. Eyre, 13 C. B. 353; Josling v. Irvine, 6 H. & N. 512; 30 L. J. Ex. 78; Boswell v. Kilborn, 15 Moore P. C. C. 309; Chinery v. Viall, 5 H. & N. 288; 29 L. J. Ex. 180; Wilson v. Lancashire & Yorkshire Railway Company, 9 C. B. N. S. 632; 30 L. J. C. P. 232; [Clarke v. Dales, 20 Barb. 42; Dana v. Fiedler, 12 N. Y. 40 ; Orr v. Bigelow, 14 Ib. 556; Dey v. Dox, 9 Wend. 129; Davis v. Shields, 24 Ib. 322; Stanton v. Small, 3 Sandf. 230; Beals v. Terry, 2 Ib. 127; Mallory v. Lord, 29 Barb. 454, 465; Lattin v. Davis, Hill & Denio, 9, 12; Pitcher v. Livingston, 4 John. 15; Clark v. Pinney, 7 Cowen, 687; Brackett v. M'Nair, 14 John. 170; Gordon v. Norris, 49 N. H. 376, 385; Stevens v. Lyford, 7 Ib. 360; Shaw v. Nudd, 8 Pick. 9; Dewey J. in Thompson v. Alger, 12 Met. 428, 443; Quarles v. George, 23 Pick. 400; Swift v. Barnes, 16 Ib. 194; Worthen v. Wilmot, 30 Vt. 555; Shepherd v. Hampton, 3 Wheat. 200, 204; Douglass v. M'Allister, 3 Cranch, 298; Davis v. Richardson, 1 Bay, 106; Whitmore v. Coates, 14 Mo. 9; Wells v. Abernethy, 5 Conn. 222; West v. Pritchard, 19 Ib. 212; Cannell v. M'Clean, 6 Harr. & J. 297; Gilpins v. Consequa, Peters C. C. 85, 94; Willings v. Consequa, Ib. 172, 176; Smith v. Berry, 18 Me. 122; Donald v. Hodge, 5 Hayw. 85; Bailey v. Clay, 4 Rand. 346; Marchesseau v. Chaffee, 4 La. An. 24; Atkins v. Cobb, 56 Ga. 86; Gregory v. McDowell, 8 Wend. 435. "Should it appear that goods of a kind like those sold could not be obtained at the time and place of delivery, and that no Result when there is no market price at place of delivery. |