Effect of subsale or pledge by buyer Sale not generally rescinded by lien or stoppage in transitu Resale by Buyer or Seller. 45. Subject to the provisions of this Ordinance the unpaid seller's right of lien or retention or stoppage in transitu is not affected by any sale or other disposition of the goods which the buyer may have made unless the seller has assented thereto : Provided that where a document of title of goods has been lawfully transferred to any person as buyer or owner of the goods and that person transfers the documents to a person who takes the document in good faith and for valuable consideration then if such last mentioned transfer was by way of sale, the unpaid seller's right of lien or retention or stoppage in transitu is defeated and if such last mentioned transfer was by way of pledge or other disposition for value the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. C.O., c. 39, s. 45. 46. Subject to the provisions of this section a contract of sale in not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu. (2) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu resells the goods the buyer acquires a good title thereto as against the original buyer. (3) Where the goods are of a perishable nature or where the unpaid seller gives notice to the buyer of his intention to resell and the buyer does not within a reasonable time pay or tender the price the unpaid seller may resell the goods and recover from the original buyer damage for any loss occasioned by his breach of contract. (4) Where the seller expressly reserves a right of resale in case the buyer should make default and on the buyer making default resells the goods the original contract of sale is thereby rescinded but without prejudice to any claim the seller may have for damages. C.O., c. 39, s. 46. Action for price PART V. ACTIONS FOR BREACH OF THE CONTRACT. Remedies of the Seller. 47. Where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract the seller may maintain an action against him for the price of the goods. (2) Where under a contract of sale the price is payable on a day certain, irrespective of delivery, 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. (3) Nothing in this ection shall prejudice the right of the seller to recover interest on the price from the date of tender of the goods or from the date on which the price was payable, as the case may be. C.O., c. 39, s. 47. for non 48. Where the buyer wrongfully neglects or refuses to Damages accept and pay for the goods the seller may maintain an action acceptance against him for damages for nonacceptance. (2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted or if no time was fixed for acceptance then at the time of the refusal to accept. C.O., c. 39, 8. 48. Remedies of the Buyer. nondelivery 49. Where the seller wrongfully neglects or refuses to Damages for deliver the goods to the buyer the buyer may maintain an action against the seller for nondelivery. (2) The measure of damages is the estimated 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 prima facie to be ascertained by 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 then at the time of the refusal to deliver. C.O., c. 39, s. 49. 50. In any action for breach of contract to deliver specific or Specific ascertained goods the Court may if it thinks fit on the appli- performance cation of the plaintiff by its judgment or decree direct that the contract shall be performed specifically without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional or upon such terms and conditions as to damages, payment of the price and otherwise as to the Court may seem just and the application by the plaintiff may be made at any time before judgment or decree. C.O., c. 39, s. 50. Remedy for breach of warranty Interest and special damages 51. Where there is a breach of warranty by the seller or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may (a) Set up against the seller the breach of warranty in diminution or extinction of the price; or (b) Maintain an action against the seller for damages for the breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting in the ordinary course of events from the breach of warranty. (3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (4) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered further damage. C.O., c. 39, s. 51. 52. Nothing in this Ordinance shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable or to recover money paid where the consideration for the payment of it has failed. C.O., c. 39, s. 52. PART VI. Exclusion of implied terms SUPPLEMENTARY. 53. Where any right, duty or liability would arise under a and conditions contract of sale by implication of law it may be negatived or varied by express agreement or by the course of dealing between the parties or by usage if the usage be such as to bind both parties to the contract. C.O., c. 39, s. 53. Reasonable Rights, etc.. enforceable by action Auction sales 54. Where by this Ordinance any reference is made to a reasonable time the question what is a reasonable time is a question of fact. C.O., c. 39, s. 54. 55. Where any right, duty or liability is declared by this Ordinance it may unless otherwise by this Ordinance provided · be enforced by action. C.O., c. 39, s. 55. 56. In the case of a sale by auction: (1) Where goods are put up for sale by auction in lots each lot is prima facie deemed to be the subject of a separate contract of sale. (2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. Until such announcement is made any bidder may retract his bid. (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale or for the auctioneer knowingly to take any bid from the seller or any such person. Any sale contravening this rule may be treated as fraudulent by the buyer. (4) A sale by auction may be notified to be subject to a reserve or upset price and the right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not otherwise, the seller or any one person on his behalf may bid at the auction. C.O., c. 39, s. 56. Court when warranty 57. Where a buyer has elected to accept goods which he Payment into might have rejected and to treat a breach of contract as only breach of giving rise to a claim for damages he may in an action by the alleged seller for the price be required, in the discretion of the Court before which the action depends, to consign or pay into Court the price of the goods or part thereof or to give other reasonable security for the due payment thereof. C.O., c. 39, s. 57. preserved 58. The rules of the common law including the law mer- Existing laws chant save in so far as they are inconsistent with the express subject hereto provisions of this Ordinance and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepresentation, duress, or coercion mistake or other invalidating cause shall continue to apply to contracts for the sale of goods. (2) Nothing in this Ordinance shall affect the enactments relating to bills of sale or any enactment relating to the sale of goods which is not expressly repealed by the Ordinance. pledges (3) The provisions of this Ordinance relating to contracts of Mortgages or sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge or other security. C.O., c. 39, s. 58. Short title TH CHAPTER 40. An Ordinance respecting Factors and Agents. HE Lieutenant Governor by and with the advice and consent of the Legislative Assembly of the Territories enacts as follows: SHORT TITLE. 1. This Ordinance may be cited as "The Factors' Ordinance." C.O., c. 40, s. 1. INTERPRETATION. 2. For the purpose of this Ordinance 1. The expression "mercantile agent" shall mean a mercantile agent having in the customary course of his business as such agent, authority either to sell goods or to consign goods for the purpose of sale or to buy goods or to raise money on the security of goods; 2. A person shall be deemed to be in possession of goods or of the documents of title to goods where the goods or documents are in his actual custody or are held by any other person subject to his control or for him or in his behalf; 3. The expression "goods" shall include wares and merchandise; 4. The expression "document of title" shall include any bill of lading, dock warrant, warehousekeeper's certificate or warrant or order for the delivery of goods and any other document used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize either by indorsement or delivery the possessor of the document to transfer or receive goods thereby represented; 5. The expression "pledge" shall include any contract pledging or giving a lien or security on goods whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability; 6. The expression "person" shall include any body of persons corporate or unincorporate. C.O., c. 40, s. 2. Powers of mercantile agents respecting disposition of goods DISPOSITIONS BY MERCANTILE AGENTS. 3. Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods any sale, pledge or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent shall subject to the provisions of this Ordi |