No. 291. V. The Same-For not Giving Security According to the Conditions of the Sale at Public Auction, the Credit not having Expired. [TITLE.] The plaintiff complains, and alleges: I. That on the... ...day of........., 187., at... the plaintiff caused to be put up and exposed to sale by public auction, in lots, certain goods and chattels, one of the said lots being a certain carriage, subject to the following terms, to wit: that the highest bidder should be the purchaser, and that the purchaser should be allowed seven months' credit for the payment of the price, after giving such security as should be approved of by A. B. on the part of the plaintiff; or that such purchaser should, at his election, pay down the purchase price at the time of the sale, and in that event that .. per cent. should be deducted, by way of discount, from the amount of the purchase money, of all of which said terms the defendant, at the time of the sale, had notice. ...... II. That at the said sale the defendant was the highest bidder for, and was declared to be the purchaser of the said carriage, subject to said terms of sale, for..... dollars. III. That the plaintiff then delivered the carriage to the defendant, as such purchaser, and was then, and has since been, always ready and willing to perform the said contract. on his part. IV. That the defendant has not, although then requested by the plaintiffs, paid any part of the said sum of............. dollars, nor has he given any security for the same, according to the said terms of sale. The plaintiff complains, and alleges: I. That on the... ... . day of........, 187., 187., at. he put up at auction, at the auction house of.......city of in this State, sundry [articles of merchandise], subject to the condition that all goods not paid for and removed by the purchaser thereof within [ten days] after the sale, should be resold at auction on his account, of which condition the defendant had notice. II. That the defendant purchased [two hundred barrels of flour] at the said auction, at the price of.......dollars. III. That the plaintiff was ready and willing to deliver the same to defendant on the said day, and for [ten days] thereafter, and on [etc.] offered to do so, and demanded payment therefor. IV. That the defendant did not take away nor otherwise receive the said goods purchased by him, nor pay for them or any of them within [ten days] after the sale, nor afterward. V. That on the ...... day of........, 187., at.... having first given the defendant reasonable notice of the time and place of resale, the plaintiff resold the said [two hundred barrels of flour], on account of the defendant, by public auction, for......dollars. VI. That the expenses attendant upon such resale. amounted to........dollars. VII. That defendant has not paid the deficiency thus arising, amounting to...... dollars. [Demand of Judgment.] 24. Conditional Sales.—A vendor of goods, which he delivers, but the title in which is to remain in him until they are paid for, may recover them in the hands of a bona fide purchaser from the vendee: Parmlee v. Catherwood, 36 Mo. 479; Putnam v. Lamphier, 36 Cal. 151; Kohler v. Hayes, 41 Id. 455. In a conditional sale, the right of the seller to take possession after a default, and sell the property, may be defeated by performance or an offer or tender of performance by the purchaser, and a sufficient tender gives the buyer a right to the property: Hutchings v. Munger, 41 Barb. 396; Miller v. Steen, 30 Cal. 403; cited in S. C., 34 Cal. 144. So he may recover the value of the goods, less the amount of purchase money unpaid at the time of the tender, and the necessary expenses of the vendor in removing and taking care of it: Miller v. Steen, 34 Cal. 144. 25. Rights of Vendor.-If the vendor, upon default of the vendee, may at his option rescind the contract, he may take possession and resell the property; but this involves no forfeiture of the amount already paid: Miller v. Steen, 30 Cal. 407. The seller becomes, on refusal to accept, the agent of the buyer, with power to sell: Sands v. Taylor, 5 Johns. 395. 26. Right of Resale.-Where the buyer wrongfully refuses to receive and pay for the goods sold, the seller has the right, as soon as he can with due regard to the interest of the buyer, and after giving him notice of his intention to resell, to sell the goods, and to recover the difference between the agreed price and the sum realized at the sale, together with expenses, from the buyer: 2 Kent's Com. 504; 1 Salk. 3; 6 Mod. 162; 119 Barn. & C. 145; 4 Bingh. 722; Pollen v. Le Roy, 30 N. Y. 549; compare Healy v. Utley, 1 Cow. 345. The buyer is not entitled to specific notice of the time and place of the resale: Bogart v. O'Regan, 1 E. D. Smith, 590; 34 Barb. 301; this has been disapproved in Ingram v. Matthiew, 3 Mo. 209. But he must dispose of the goods in good faith: Crooks v. Moore, 1 Sandf. 297. No. 293. vii. By Manufacturer, for Goods made at Defendant's Request, and not [TITLE.] Accepted. 187., at The plaintiff complains, and alleges: I. That on the .... day of . . . . . . . the defendant agreed with the plaintiff, that the plaintiff should make for him [ten casks], and that defendant should receive for the same, upon delivery thereof, lars. dol II. That the plaintiff made the said casks, and on the day of.... 187., offered to deliver the same to defendant, and has ever since been ready and willing to do so. ......... III. That defendant has not paid for the same. [Demand of Judgment.] 27. Breach of Contract.-If one contracts to make merchantable lumber for another, and the other takes away unmerchantable lumber, contrary to the wish and orders of the maker, this is not a breach of the contract on the part of the maker: Hale v. Trout, 35 Cal. 229. 28. Manufacturing Goods.-A contract to deliver goods to be manufactured by the party agreeing to deliver, is not an agreement for the sale of goods within the statute: Crookshank v. Burrell, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; Courtwright v. Stewart, 19 Barb. 455; Donovan v. Wilson, 26 Id. 138; Parker v. Schenck, 28 Id. 38; Robertson v. Vaughn, 5 Sandf. 1. So flour contracted to be manufactured and delivered, is not within the statute: Bronson v. Wiman, 10 Barb. 406. 29. Causes of Action.—Where the person ordering the goods refuses to take them when made, it has been held that the maker may deliver to a third party, with notice to the defendant, and sue for goods sold: Bement v. Smith, 15 Wend. 493. 30. Materials Found.-It has been held, that the plaintiff cannot, on an account for goods sold, recover merely upon proof of materials found by him, and used in services rendered: Cotterell v. Appsey, 6 Taunt. 322. 31. Title to Property.-Where the plaintiff sold a number of bales of drillings to A., for the purpose of making sacks, deliverable to A. as fast as he needed them for manufacturing, and A. agreed to store the sacks, as fast as made, subject to plaintiff's order, with the privilege of retaking them as fast as he should pay: Held, that the title rested in A., and plaintiff had no lien thereon, or on the sacks, until delivered to him: Hewlett v. Flint, 7 Cal. 264. No. 294. viii. For Breach of Promise, by Purchaser of Good Will, not to Carry on Rival Trade. of [TITLE.] The plaintiff complains, and alleges: at I. That heretofore the defendant carried on the business ; and on or about the .... 187., in consideration that the plaintiff day of would purchase from him his store and goods therein, for the sum of ........ dollars, and the good will of the said business for the sum of .... .. dollars, the defendant agreed with the plaintiff that he would not at any time thereafter, by himself, or partner, or agent, or otherwise, either directly or indirectly, set up or carry on the business of a or at any other place within the city of , at II. That the plaintiff accordingly purchased from the defendant his said for the price and at the terms aforesaid, and paid said sum of ..... dollars for the said store and goods, and the good will of said business. III. That the plaintiff duly performed all the conditions of said agreement on his part. IV. That the defendant afterwards, to wit, on the ....... day of 187., set up and carried on the business. of at [Demand of Judgment.] 32. Acceptance.-The acceptance of the property precludes an action by the buyer against the seller, for damages, on the ground that the articles actually furnished do not correspond with the contract: Reed v. Randall, 29 N. Y. 358; Fitch v. Carpenter, 43 Barb. 40. The buyer, by retaining the property without notice to the seller, waives all remedy upon the contract for any breach of an obligation implied by law, e. g., the obligation to deliver an article of merchantable quality: 1 Campb. 190; 1 Carr. & P. 15; 20 Wend. 61; 5 N. Y. 73; 2 Sandf. 262; 23 Wend. 350; 1 Stark. 477; 2 Kent, 480; Pars. on Cont. 475; Reed v. Randall, 29 N. Y. 358. 33. Agent, Purchase from.-An allegation that the goods were purchased of A., the agent, then and there acting for defendant, is sufficiently certain to prevent any misapprehension of its meaning, and is the same as if the allegation was of the purchase from defendant: Cochrane v. Goodman, 3 Cal. 214. No. 295. ix. Buyer against Seller, for not Delivering Goods Sold. [TITLE.] The plaintiff complains, and alleges: I. That on the....day of... 187., at the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred sacks of potatoes] to the plaintiff [on the .... the plaintiff should pay therefor livery. day of 187.], and that dollars on de II. That on the said day, the plaintiff was ready and willing, and offered to pay the defendant the said sum, upon delivery of the said goods. III. That the defendant has not delivered them. [Demand of Judgment.] 34. Assignee. Where plaintiff contracted for the delivery of a quantity of lumber after a certain time, and on three days' notice, and assigned the contract to another, the delivery and payment were concurrent acts: Fruit v. Phelps, 4 Cal. 282. In case of an assignment by the buyer, the demand of performance of a condition precedent on the part of the vendor must be made upon the vendor, and not alone upon the assignor: Dustan v. McAndrew, 10 Bosw. 130. Where a party who has purchased goods by fraudulent representations, assigns them in payment of a pre-existing debt to one who takes them bona fide, without notice of the fraud, the latter acquires a good ́ title as against the original vendor: Butters v. Haughwout, 42 Ill. 18; but see Robinson v. Haas, 40 Cal. 474, where it is held that a sale of personal property passes to the purchaser only such title as the vendor had. 35. Condition Precedent.—Where defendants stipulated to sell plaintiff certain merchandise "shipped” from Batavia, and the parties agreed that the contract should be binding until the arrival of the ship, its arrival is a condition precedent, which must be shown before either party can maintain an action: Middleton v. Ballingall, 1 Cal. 446; Russell v. Nicoll, 3 Wend. 112; Shields v. Pettie, 4 N. Y. 122; Benedict v. Field, 16 N. Y. 595. 36. Damage. In an action for not delivering the thing sold, the measure of damages is the value at the time of the breach: Hopkins v. Lee, 6 Wheat. 109; Blydenburgh v. Welsh, Bald. 331; Shepherd v. Hampton, 3 Wheat. 200. 37. Delivery-Time.-If a contract or order under which goods are to be furnished does not specify any time at which they are to be delivered, the law implies a contract that they should be delivered in a reasonable time; and no evidence will be admissible to prove a specific time at which they were to be delivered, for that would be to contradict and vary the legal interpretation of the instrument: Cocker v. Franklin Manufacturing Co., 3 Sumn. 530; see Terwilliger v. Knapp, 2 E. D. Smith, 86. 38. Demand, Averment of.-A complaint, alleging that the defendant sold to plaintiffs a certain share of fruit growing in an orchard, and after the sale executed a guaranty that the share of plaintiffs should be at their dis |