Section 51. Buyer's Liability for Failing to Accept Delivery. - When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not, within a reasonable time after such request, take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery amounts to a repudiation or breach of the entire contract, the seller shall have the rights, against the goods and on the contract, hereinafter provided in favor of the seller when the buyer is in default. It is the buyer's duty to receive the goods at the time and place, when and where the seller is bound to tender or deliver them.1 If the vendee fails to take delivery of the goods within a reasonable time after the seller is ready and willing to deliver them and requests him to receive them, he is liable for any loss occasioned to the seller, by such failure, and also for reasonable charges for the care and custody of the goods. What constitutes a reasonable time is a question of fact for the jury under all the circumstances of the case.3 The vendor must tender delivery and request the buyer to take possession to put him in default and lay a foundation for an action against him for damages for unreasonable delay in taking delivery.1 1. 2 Mechem on Sales, § 1373; Fruit Despatch Co. v. Le Seno, 147 Mich. 149. 2. Canda v. Wick, 100 N. Y. 127; Clark v. Fey, 121 N. Y. 470; Steinhardt v. Bingham, 182 N. Y. 326; Am. Hide & Leather Co. v. Chalkley, 101 Va. 458; Greaves v. Ashlin, 3 Camp. 426; Bloxam v. Sanders, 4 B. & C. 941; Bartholomew v. Freeman, 3 C. P. D. 316; Benjamin on Sales, § 700. The vendee is liable for non-acceptance where specific goods were sold for cash and set apart; the vendee paying a portion of the purchase price and taking a smaller proportionate part of the goods, agreeing to pay the balance and take the rest of the goods in a few days, which he did not do. Morse v. Sherman, 106 Mass. 430. Where the vendee contends that the property is not his and treats it as belonging to the vendor, and the vendor elects to keep it for the vendee, and sue for the entire contract price, there is no implied contract on the part of the vendee to pay the vendor the expenses of keeping it. Putnam v. Glidden, 159 Mass. 47, 50. Citing Whiting v. Sullivan, 7 Mass. 107; Earle v. Coburn, 130 Mass. 596. 3. Buddle v. Green, 3 H. & N. 906. 4. Jones v. Gibbon (1853), 8 Exch. 920; Benjamin on Sales, § 700. A demand sufficient to charge the drawer of a bill of exchange will not sustain an action on an order payable in merchandise. Sears v. Law This remedy is given the seller for the buyer's unreasonable delay in talking delivery only and does not interfere with the seller's remedies for entire repudiation of the contract or nonacceptance.5 rence, 81 Mass. (15 Gray) 267. The vendee is not liable in the absence of notice that goods are ready for delivery. Nat. Coal Tar Co. v. M. & M. Gas Light Co., 189 Mass. 234. 5. King v. Faist, 161 Mass. 449.. See sec. 53 et seq. and sec. 64. PART IV RIGHTS OF UNPAID SELLER AGAINST THE GOODS. Section 52. Definition of Unpaid Seller.-(1.) The seller of goods is deemed to be an unpaid seller within the meaning of this Act: (a.) When the whole of the price has not been paid or tendered, (b.) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has been broken by reason of the dishonor of the instrument, the insolvency of the buyer or otherwise. (2.) In Part IV of this Act, the term "seller" includes an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for the price, or any other person who is in the position of a seller. (1.) UNPAID.-A seller is "unpaid" within the meaning of the Act, (a) When the whole of the price has not been paid or tendered.1 (b) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which 1. Wood v. Roach, 2 U. S. (2 Dall.) 180; Hodgson v. Loy (1797), 7 T. R. 440; Feise v. Wray (1802), 3 East, 93, 102; Van Casteel V. Booker (1848), 2 Exch. 691, 702, 709; Ex parte Chalmers (1873), L. R. 8 Ch. App. 289; Martindale V. Smith (1841), 1 Q. B. 389; Edwards v. Brewer, 2 M. & W. 375; Benjamin on Sales, § 835; 1 Jones on Liens, § 877. If the contract is severable, the vendor can exercise his rights only against the goods unpaid for. Mer chants Banking Company v. Phoenix Steel Co., 5 Ch. D. 205. Part payment does not defeat exercise of right. 2 Mechem on Sales, §§ 1603, 1604; Benjamin on Sales, § 835; 1 Jones on Liens, § 881; Newhall v. Vargas, 13 Me. 93; Hodgson v. Loy (1797), 7 T. R. 440; Feise v. Wray (1802), 3 East, 93; Edwards v. Brewer, 2 M. & W. 375; Van Casteel v. Booker, 2 Exch. 691, 702. Giving credit on a precedent debt is payment. 1 Jones on Liens, § 877; Wood v. Roach, 1 Yeates, 177. it was received has been broken by reason of the dishonor of the instrument, the insolvency of the buyer, or otherwise.2 (2.) SELLER.-A "seller," within the meaning of Part IV of the Act, includes, (a) One who has transferred or agreed to transfer the general property of the goods, but not the owner of special property.3 Executory Interest.-This includes one who contracts to sell goods which he has contracted to buy, but which have not yet been ascertained or appropriated to him; but it does not include the unpaid seller of the vendor.5 (b) Any person who is in the position of the seller so as to be entitled to the same protection. This includes an agent of the seller to whom the bill of lading 2. Feise v. Wray (1802), 3 East, 93; Griffiths v. Perry (1859), 28 L. J. Q. B. 204; Ex parte Lambton (1875), L. R. 10 Ch. App. 414, 415; Gunn v. Blockow, Vaughan & Co. (1875), L. R. 10 Ch. App. 491, 501; Dixon v. Yates, 5 B. & Ad. 313, 345; Edwards v. Brewer, 2 M. & W. 375. See Ex parte Stapleton (1879), 10 Ch. D. 586 C. A.; Benjamin on Sales, § 835. This is so although the bills may have been negotiated and be outstanding in the hands of third parties. Benjamin on Sales, § 835; Feise v. Wray (1802), 3 East, 93; Patten v. Thompson, 5 M. & S. 350; Edwards v. Brewer, 2 M. & W. 375; Miles v. Gorton, 2 Cr. & M. 504; Ainis v. Ayres, 62 Hun (N. Y.), 376. Whether such bill is received in absolute or conditional payment is a question of fact. Goldshede v. Cottrell (1836), 2 M. & W. 20. "If the bill is dishonored before delivery of the goods has been made, then the vendor's lien revives, or if the purchaser becomes openly insolvent before the delivery actually takes place, then the law does not compel the vendor to deliver to an insolvent purchaser." Gunn V. Blockow, Vaughn & Co. (1875), L. R. 10 Ch. App. 491, 501. See sec. 41, as to when a bill, note, etc., constitutes payment. Terry v. Bissell, 26 Conn. 23, 40. 3. Sweet v. Pym, 1 East, 4; Kinloch v. Craig, 3 T. R. 119, 786; Gwyn v. Richmond & D. R. R. Co., 85 N. C. 429; Benjamin on Sales, § 832. 4. 2 Mechem on Sales, § 1536; Benjamin on Sales, § 831. "We see no sound distinction with reference to the right of stoppage in transitu between the sale of goods, the property of which is in the vendor, and the sale of an interest which he has in a contract for the delivery of goods to him." Jenkyns v. Usborne, 7 M. & G. 678; 8 Scott N. R. 505. 5. Memphis, etc., R. R. Co. V. Freed, 38 Ark. 614; Eaton v. Cooke, 32 Vt. 58; Stubbs v. Lund, 7 Mass. 453; 2 Mechem on Sales, § 1532. Cf. Ex parte Golding, 13 Ch. D. 628. 6. Imperial Bank V. Dock Co. (1877), 5 Ch. D. 195; Jenkyns v. Usborne (1844), 7 M. & Gr. 678, 698; Feise v. Wray, 3 East, 93; Ex parte Miles, 15 Q. B. D. 39; Patten v. Thompson, 5 M. & S. 350; Newhall v. Vargas, 13 Me. 93, 15 Me. 314; Gossler v. Schepeler, 5 Daly (N. Y.), 476; 2 Mechem on Sales, § 1529; Benjamin on Sales, § 830. Cf. Cassa. boglow v. Gibb (1885), 81 Q. B. D. 804. 9 8 12 has been indorsed; an agent, acting for his principal, having general authority or a special authority for that purpose, by previous grant, or subsequent ratification,10 before the time for exercising the right has expired; a principal who has consigned goods to a factor, notwithstanding the factor may have made advancements to the principal on the security of the consignment,' or may have a joint interest with the consignor; 13 a factor who has bought goods for his principal and paid for them;1 any person who pays the price for the buyer relying for security upon the goods pledged by an assignment of documents of title;15 but not a mere surety for the buyer1 until he has paid the price.17 Section 53. Remedies of an Unpaid Seller.-(1.) Subject to the provisions of this Act, notwithstanding that the property in 7. Morrison v. Gray (1824), 2 Bing. 260; Jenkyns v. Usborne (1844), 7 M. & G. 678; Waring v. Cox, 1 Camp. 369. 8. Reynolds v. Boston & M. R. R. Co., 43 N. H. 580; Bell v. Moss, 5 Whart. (Pa.) 189; Chandler v. Fulton, 10 Tex. 2; 2 Mechem on Sales, § 1537. 9. Newhall v. Vargas, 13 Me. 93; Reynolds v. B. & M. R. R. Co., 43 N. H. 580; Bell v. Moss, 5 Whart. (Pa.) 189; Chandler v. Fulton, 10 Tex. 2; Whitehead v. Anderson (1842), 9 M. & W. 518. 10. Durgy Cement Co. v. O'Brien, 123 Mass. 12; Hutchings v. Nunes, 1 Moore's P. C. (N. S.) 243; Whitehead v. Anderson, 9 M. & W. 518; Wood v. Jones, 7 D. & R. 126; Bailey v. Culverwell, 8 B. & C. 448; Benjamin on Sales, § 833. 11. Bird v. Brown, 4 Exch. 786; Bolton v. Lambert, 41 Ch. D. 295; Dibbins v. Dibbins (1896), 2 Ch. D. 348; Benjamin on Sales, § 834. 12. Kinloch v. Craig, 3 T. R. 119; Benjamin on Sales, § 833. 13. Newsom v. Thornton, 6 East, 17; 2 Mechem on Sales, § 1534; Benjamin on Sales, § 833. 14. Seymour v. Newton, 105 Mass. 272; Ogle v. Atkinson, 5 Taunt. 759; "It has been directly adjudged that a factor or agent who purchases goods for his principal and makes himself liable to the original vendor is so far considered in the light of a vendor as to be entitled to stop the goods." Newhall v. Vargas, 13 Me. Citing Feise v. Wray, 3 East, 93. 93. But an unpaid agent cannot exercise rights in the goods against his principal's buyer for his principal's default. Gwyn v. Richmond, etc., R. R. Co., 85 N. C. 429; Lake Shore, etc., R. R. Co. v. National Livestock Bank, 178 Ill. 506. 15. Muller v. Pondir, 55 N. Y. 325; Gossler v. Schepeler, 5 Daly (N. Y.), 476; 2 Mechem on Sales, § 1531. 16. Siffken v. Wray, 6 East, 371. 17. Imperial Bank v. London & St. K. Dock Co., 5 Ch. D. 195; Benjamin on Sales, § 831. |