PART VI.

REMEDIES UPON BREACH OF THE

CONTRACT.

Under this title will be discussed, first, the remedies of the vendor upon a breach of the contract by the vendee, and secondly, the remedies of the vendee upon a breach on the part of the vendor.

A. THE VENDOR'S REMEDIES.

1. AGAINST THE GOODS.

§ 194. The remedies of the vendor are, in their character, twofold. The vendor, under certain circumstances, has remedies against the goods themselves, of an in rem nature, and in addition to such remedies he has his personal actions against the vendee. In order to proceed against the goods they must be in the vendor's possession, or, at least, not in the vendee's possession, because just as soon as the goods are in the possession of the vendee, by unconditional delivery, there can be no action against them. We have noticed how the vendor has a lien for the price when the goods are as yet undelivered, and how even after a delivery to the carrier the vendor may regain possession of the goods by stopping them in transit, in case of the insolvency of the vendee. Aside from these remedies, neither of which necessarily involves any breach of the contract by the vendee, the vendor (the property having passed), in case of actual breach by the vendee, such, for example, as a refusal to

pay, may, by virtue of his right of lien, hold the goods for the vendee, and sue him for the contract price; or, as a strict remedy against the goods alone, the vendor may, as agent for the vendee, sell the goods, and, in addition to what he receives for them at the resale, may recover his remaining damages, if any.

§ 195. Principles of Resale:

Where the vendor, as a remedy for breach of contract, undertakes to resell the goods, such resale implies that the title to the goods is in the vendee, and therefore the vendor acts not as owner but as agent for the vendee. He should, in general, give notice to the vendee of the time and place of the sale, in order that the vendee may have full opportunity to be represented at the sale if he so desires. It is sometimes said that such notice is not legally necessary, and circumstances may dispense, no doubt, with the requirement of such notice; but, in general, in order to show good faith and to avoid all questions as to the legality of the sale, it is wiser for the vendor to notify (preferably in writing) the vendee of such time and place.

As to time, it should be within a reasonable time after the breach, in order that the price, in a possibly falling market, may not be endangered. The place of sale is usually at the place of delivery, but not necessarily so. There may be no suitable market there. In general, the sale should be made at the nearest suitable market, and if so made, especially by a public sale, the selling price may reasonably be held to be a fair market price for the goods. In case of failure on the part of the vendor to observe every reasonable rule of duty in the sale, the price received may be disputed by the vendee as being a fair market price.

The measure of damages in resale is the difference be