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contract as rescinded, he cannot recover for the profits on the unexecuted part."

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The seller must manifest his election to rescind the contract by giving notice to the buyer; for, while the contract continues, the buyer has the right to perform his part, and demand performance from the seller.11

The effect of the rescission is to put an end to the contract, and all of its obligations for all purposes as to both parties. The seller cannot therefore claim damages for its breach, or recover on the contract for any goods delivered under it.12

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REMEDIES OF THE BUYER.

Section 66. Action for Converting or Retaining Goods.Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld.

Where the title to the goods has passed to the buyer, his ownership carries with it the right of possession at the time fixed by, and according to, the terms of the contract; or if no special terms for delivery of possession are agreed upon, then upon his performance of any conditions precedent to delivery.' Failure thus to

Kearney v. Doyle, 22 Mich. 294; McCullough v. Baker, 47 Mo. 401; Buffkin v. Baird, 73 N. C. 283; Merritt v. R. R. Co., 16 Wend. (N. Y.) 586; Clark v. Mayor of N. Y., 4 N. Y. 338; Chamberlain v. Scott, 33 Vt. 80. See, also, Derby v. Johnson, 21 Vt. 17, 18.

10. Clark v. Mayor of N. Y., 4 N. Y. 338.

11. Johnson v. Hughes, 83 Ark. 105; Wilkinson v. Blount Mfg. Co., 169 Mass. 374; 2 Mechem on Sales, § 1708.

The seller may expressly or impliedly waive his right to rescind. Byrne Mill Co. v. Robertson, 149 Ala. 273.

12. 2 Mechem on Sales, § 1713; Benjamin on Sales, § 763.

The vendor by bringing an action

for the price, affirms the contract. Westfall v. Peacock, 63 Barb. (N. Y.) 209.

Where the vendor attaches property sold as the vendee's it is an affirmance of the sale and he cannot afterward rescind. Conrow v. Little, 115 N. Y. 387.

1. Crug v. Gorham, 74 Conn. 541, 543; Hanson v. Slaven, 98 Cal. 377; Stephenson v. Cady, 117 Mass. 6; King v. Faist, 161 Mass. 449; Lowry v. Barelli, 21 Ohio St. 324; Faber v. Hougham, 36 Ore. 428; 1 Benjamin on Sales, § 883.

If there are no terms of credit, the buyer must tender the price before bringing action; mere readiness and willingness to pay is not enough. Lawrence v. Everett, 11 N. Y. Supp. 881; Speyer v. Colgate, 67 N. Y. 192;

deliver possession of the goods is wrongful. Where the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action allowed by local procedure to the owner of goods of similar kind when wrongfully converted or withheld. The actions generally allowed in such cases are (1) specific performance; (2) possessory actions, as detinue and replevin; (3) actions on the contract to recover damages for breach thereof; (4) actions in tort for conversion, as trover.

1. SPECIFIC PERFORMANCE.-The circumstances under which a court of equity will decree specific performance, will be considered under section 68.3

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2. REPLEVIN.--The buyer may replevin the goods after he has acquired title, and become the owner, where the seller wrongfully refuses or neglects to deliver possession, although the goods are in the custody of a third person."

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3. DAMAGES.-The law as to actions to recover damages for breach of contract is the same in both executory and executed contracts, and will be given in section 67.7

4. TROVER. The buyer, instead of resorting to any of the

Nelson v. Plimpton, etc., Co., 55 N.
Y. 480.

The buyer's insolvency or inability
to pay is a good defense.
Diem v.
Koblitz, 49 Ohio St. 41.

2. Crug v. Gorham, 74 Conn. 541,

543.

3. 2 Mechem on Sales, § 1717 et seq; Benjamin on Sales, § 884.

4. Replevin will not lie in an executory contract for the reason that (1) the plaintiff must have a general or special property in the particular chattels sought to be replevied, and (2) only specific chattels, distinguishable from other chattels of the same kind, can be replevied. It will not lie to recover damages for mere breach of contract in not delivering property.

'The action of replevin is founded in tort. There must be a tortious taking or detention of property; a mere breach of contract is not sufficient. Hence, it is no remedy to enforce a contract, or recover damages for its non-performance." Mead v. Johnson, 54 Conn. 317, 319.

5. Carpenter v. Glass, 67 Ark. 135; De St. Aubin v. Field, 27 Col. 414; Mead v. Johnson, 54 Conn. 317, 319; Rhea v. Riner, 21 Ill. 526; Barker v. Bushnell, 75 Ill. 220; Locke v. Hedrick, 24 Kan. 763; Cheney v. Eastern Transportation Line, 59 Md. 557; Kennedy v. Whitwell, 21 Mass. (4 Pick.) 466; Sandler v. Bresnaham, 53 Mich. 567; Boutell v. Warne, 62 Mo. 350; Winslow v. Leonard, 24 Pa. St. 14; Kent Iron Co. v. Norbeck, 150 Pa. St. 559; Abraham v. Karger, 100 Wis. 387.

6. Lazard V. Wheeler, 22 Cal. 140; Whipple v. Thayer, 33 Mass. (16 Pick.) 25; Norton v. Simonds, 124 Mass. 19.

For the replevin of goods in the hands of a carrier, title to which has been transferred by the transfer of the bill-of-lading, see Sheppard v. Newhall, 54 Fed. 306, 47 Fed. 468; Peters v. Elliott, 78 Ill. 321; First National Bank of Green Bay v. Dearborn, 115 Mass. 219.

7. See sec. 67, post.

foregoing actions, may maintan an action of trover against the defaulting seller if he has resold the goods. The measure of damages in an action of trover, where the buyer has paid the price, is the value of the goods at the time of conversion." If the buyer has not paid the price, it is the excess of the market value over the contract price.10

8. Kennedy v. Whitwell, 21 Mass. (4 Pick.) 466; Philbrook v. Eaton, 134 Mass. 398; Hayes v. Stortz, 131 Mich. 63; Langton v. Higgins (1859), 28 L. J. Ex. 252, 290; Hollins v. Fowler (1875), L. R. 7 H. L. 757; Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231; Cooper v. Willomat (1845), 1 C. B. 672; 2 Mechem on Sales, § 1786; Benjamin on Sales, § 885.

A mere contract to resell is not a conversion. Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231.

The wrongful resale, and not the refusal to deliver, constitutes the conversion. Clark v. Whitaker, 19 Conn. 319, 327. Citing Keyworth v. Hill, 3 B. & A. 685, 687; Featherstonhaugh v. Johnston, 8 Taunt. 237; Lovell v. Martin, 4 Taunt. 799.

If the original buyer is in default of the price, a resale is not conversion. Milgate v. Kebble (1841), 3 M. & G. 100.

Having elected one remedy, the buyer cannot afterward apply another. Hayes v. Stortz, 131 Mich. 63.

9. Ark. Valley Land & Cattle Co. v. Mann, 130 U. S. 69; Terry v. Birmingham National Bank, 93 Ala. 599; Jones v. Horn, 51 Ark. 19; Clark v. Whitaker, 19 Conn. 319, 327; Sturges v. Keith, 57 Ill. 451; Brewster v. Van Liew, 119 Ill. 554; Thew v. Miller, 73 Ia. 742; Simpson v. Alexander, 35 Kan. 225; Wing v. Milliken, 91 Me. 387; Hopper v. Haines, 71 Md. 64; Kennedy v. Whitwell, 21 Mass. (4 Pick.) 466; Trotter v. Tousey, 131 Mich. 624; Jellett v. St. Paul Ry. Co., 30 Minn. 265; Beede v. Lamprey, 64 N. H. 510; Griggs v. Day, 136 N. Y. 152; Lance v. Butler,

135 N. C. 419; Crampton v. Marble Co., 60 Vt. 291; Ingram v. Rankin, 47 Wis. 406; France v. Gaudet, L. R. 6 Q. B. 199; Benjamin on Sales, § 875.

The measure of damages for conversion is the market value at the time of conversion, of the property converted with interest from the time of the conversion to the date of the verdict. Lorain Street Co. v. N. & B. St. Ry. Co., 187 Mass. 500, 516; Greenfield Bank v. Leavitt, 34 Mass. (17 Pick.) 1, 3; Forbes v. B. & L. R. Co., 133 Mass. 154, 158; East Tenn. Land Co. v. Leeson, 183 Mass. 37, 41; Clark v. Clement, 75 Vt. 417. 10. Chinery v. Viall, 5 H. & N. 287; 2 Mechem on Sales, § 886.

The measure of damages in the sale of choses in action, as stocks, bonds, etc.-to which the act does not apply

of fluctuating values, is based on the highest market value between the date of the conversion and a reason able time thereafter, within which the buyer may have purchased other choses of the same kind. 2 Mechem on Sales, § 1787; Galigher v. Jones, 129 U. S. 193; Burks v. Hubbard, 69 Ala. 379; Brewster v. Van Liew, 119 Ill. 554; Galena, etc., Ry. Co. v. Ennor, 123 Ill. 505; Citizens' State Railway Bank v. Robbins, 144 Ind. 671; Gilman v. Andrews, 66 Ia. 116; Freeman v. Harwood, 49 Me. 195, Andrews v. Clark, 72 Ma. 396; Fisher v. Brown, 104 Mass. 259; Chadwick v. Butler, 28 Mich. 349; Jackson v. Evans, 44 Mich. 510; Walker v. Borland, 21 Mo. 289; Baker v. Drake, 53 N. Y. 211, 66 N. Y. 518; Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; Wright v. Bank of

Section 67. Action for Failing to Deliver Goods.-(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 is, in the absence of special circumstances showing proximate damages of a greater amount, 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 for delivery, then at the time of the refusal to deliver.

Where the seller wrongfully neglects or refuses to transfer the title and deliver the goods, the buyer, not having the right of possession, cannot maintain trover as for conversion, or replevin to

Metropolis, 110 N. Y. 237, 1 L. R. A. 289; Fosdick v. Greene, 27 Ohio St. 484; Work v. Bennett, 70 Pa. St. 484; North v. Phillips, 89 Pa. St. 250; Coffman v. Williams, 51 Tenn. (4 Heisk.) 233; Heilbroner v. Douglass, 45 Tex. 402; Hill v. Smith, 32 yt. 433; Ingram v. Rankin, 47 Wis. 406.

Some States allow the highest price at any time before the trial. Wells v. Abernathy, 5 Conn. 222, 227; West v. Pritchard, 19 Conn. 212, 216. Citing Shepherd v. Johnson, 2 East, 211; Payne v. Burke, 2 East, 213, n.; Harrison v. Harrison, 1 C. & P. 412. See, also, Romaine v. Van Allen, 26 N. Y. 307, 309; Markham v. Jandon, 41 N. Y. 235.

"The buyer cannot recover greater damages by thus suing in tort than by suing on the contract. If, therefore, the vendor's conversion was before delivery, and so that he cannot maintain an action for the price, as if he had resold the goods to a third

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person, the damages recoverable would be only the difference between the contract price and the market value. Chinery v. Viall, 5 H. & N. 287, 288. But if the vendor's right of action for the recovery of the price were not thus lost, as if he had delivered the goods and afterwards tortiously retaken and converted them, the buyer's right of recovery in trover was for the whole value, and the vendor was driven to his cross-action. Gillard v. Brittan, 8 M. & W. 575.” Benjamin on Sales, § 886. To the same effect are, Chinery v. Viall (1860), 29 L. J. Ex. 180; Johnson v. Stear (1863), 33 L. J. C. P. 130; Hiort v. L. & N. W. Ry. Co. (1879), 4 Ex. 188 C. A.

1. Browning v. Hamilton, 42 Ala. 484; Deutsch v. Dunham, 72 Ark. 141; Kennedy v. Whitwell, 21 Mass. (4 Pick.) 466; Conway v. Bush, 4 Barb. (N. Y.) 564; Keeler v. Schmertz, 46 Pa. St. 135.

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recover the possession. In certain cases, but not ordinarily, he may enforce specific performance. The usual, and ordinarily an adequate, remedy is an action at law for damages.*

DAMAGES.-The buyer may regard the neglect or refusal to sell or deliver in accordance with the terms of the contract,5 merely as a breach of the contract, and maintain an action for damages for such breach. The measure of damages is the loss directly and immediately resulting, in the ordinary course of events, from the

2. Hodges v. Nall, 66 Ark. 135; Carpenter v. Glass, 67 Ark. 135; Deutsch v. Dunham, 72 Ark. 141; Mead v. Johnson, 54 Conn. 317; Updike v. Henry, 14 Ill. 378; Stone V. Peacock, 35 Me. 385; Morrison V. Dingley, 63 Me. 553; Lawry v. Ellis, 85 Me. 500; Ropes v. Lane, 91 Mass. (9 Allen) 502; Keeler v. Goodwin, 111 Mass. 490; Boutell v. Warne, 62 Mo. 350; Graves v. Damrow, 28 Neb. 271; Kerr v. Henderson, 62 N. J. L. 724; Johnson v. Hunt, 11 Wend. (N. Y.) 137; Kirven v. Pinckney, 47 S. C. 229; 2 Mechem on Sales, 1734.

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Goods sold in Baltimore to be shipped to New Orleans, terms cash to be delivered . . F. O. B. Baltimore," means that the seller is entitled to payment at Baltimore upon delivery of the goods there for shipment, and the buyer had no right to require delivery to him in New Orleans where he had an opportunity to inspect the goods before making payment. Lawder v. Mackie Grocery Co., 97 Md. 1.

3. Krouse v. Woodward, 110 Cal. 638; Todd v. Diamond State Iron Co., 8 Houst. (Del.) 372; Millirons v. Dillon, 100 Ga. 656; Carolee v. Handelis, 103 Ga. 299; Ames v. Witbeck, 179 Ill. 458; Clark v. Truitt, 183 Ill. 239; Anderson v. Olsen, 188 Ill. 502; New England Trust Co. v. Abbott, 162 Mass. 148; Moulton v. Warren, 83 Minn. 259; Northern Trust Co. v. Markell, 61 Minn. 271; Electric Service Co. v. Gill-Alexander Co., 125 Mo. 140; Eckstein v. Down

ing, 64 N. H. 248; Williams v. Montgomery, 148 N. Y. 519; Steinmeyer v. Siebert, 190 Pa. St. 471; Rigg v. Reading, etc., Street Railway Co., 191 Pa. St. 298; Manton v. Ray, 18 R. I. 672; Lining v. Geddes, 1 McCord (S. C.), Eq. 304; Stuart v. Pennis, 91 Va. 688; Hissam v. Parrish, 41 W. Va. 686; 2 Mechem on Sales, § 1718.

4. Deutsch v. Dunham, 72 Ark. 141; Byrne Mill Co. v. Robertson, 149 Ala. 272; 2 Mechem on Sales, § 1734; Benjamin on Sales, § 870.

Where the vendor of personal property has put it out of his power to deliver the same, no demand by the vendee for a return of the purchase price before bringing suit therefor is necessary. Commencement of the suit is sufficient demand. Fay v. Fitzpatrick, 130 Ia. 279.

5. Blalock v. Clark, 137 N. C. 140. In a sale of coal upon the condition that the seller is not to be " responsible for loss of coal on route, nor from damages from delays in transportation, strikes or causes beyond his control, if the carrier seizes the coal and consumes it, there being a great scarcity of coal, and af. terwards pays the seller the same price the buyer agreed to pay for it, the buyer cannot maintain an action against the seller for non-delivery. Davis v. Columbia Coal Co., 170 Mass. 391, 396.

Destruction of goods excuses nondelivery. Dexter v. Norton, 47 N. Y. 62. See secs. 7 and 8.

6. Lonergan v. Buford, 148 U. S. 581; Raisin Fertilizer Co. v. Barrow,

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