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If the goods have no market value, the vendor usually may recover the difference between the contract price and the cost of production, or between the contract price and the best obtainable offer. Where the goods are to be procured or manufactured by the vendor, his damages are his loss of profits which ordinarily is the difference between the contract price and the cost to produce or to procure the goods.

192. Remedies of the vendee.-The rights and remedies of a vendee depend upon whether the title to the goods has been transferred or not. If the title has passed, the vendee becomes the owner of the property and may sue the vendor in conversion for the value of the property or he may replevin the goods, thus getting physical possession of them.

If title has not passed and the vendor refuses wrongfully to deliver the goods, the vendee may maintain an action for damages. The measure of damages ordinarily is the difference between the contract price and the market price at the time and place contemplated in the contract for delivery, but these damages may be increased by special loss to the buyer if at the time the contract was made the seller had actual knowledge of the use to which the goods were to be put.

EXAMPLES

216. A sells B a wagon and receives the purchase price, but later refuses to deliver the wagon. B may sue A for conversion and recover the value of the wagon or may obtain a writ of replevin directing the sheriff to seize the wagon and turn it over to B.

217. A sells to B 10,000 pounds of cotton at twelve cents a pound to be delivered in one month. At the expiration of that time A refuses delivery. B may sue A for the difference between the contract price of the cotton and the market value.

218. A sells to B a refrigerator to be delivered in one month. A the time the contract is made B informs A that the refrigerator is to be installed in a new plant, that B's lease on his old plant will expire at the end of a month and that it will be necessary to transfer all his stock to the new refrigerator at that time. If A refuses to deliver the refrigerator on the due date, B may recover special damages covering the injuries to his stock by reason of the lack of refrigeration.

CHAPTER XII

BAILMENTS

193. Definitions.-A bailment is a transfer of the possession of personal property without a transfer of the absolute title, upon a contract, express or implied, that the property will be returned to the transferror or his designated representative when the purposes of the bailment are fulfilled. The transferror is called the bailor and the transferee is called the bailee. Any form of personal property may be the subject of a bailment. Thus, corporeal property, such as a horse, a watch or the furnishings of a house, or incorporeal property, such as stocks, bonds and documents of title may be transferred under the rules governing bailments. While the word bailment comes from a French word meaning "to deliver," the delivery may be either actual, constructive or by operation of law. The bailor need not be the general owner of the property transferred but may himself be a bailee. In such a case, the second bailee does not become the bailee of the owner of the property, but remains bound to his immediate bailor. A bailee, as the rule is often worded, cannot dispute his bailor's title.

EXAMPLES

219. A loans B his watch to time a race. Here there is actual delivery and B is bound to return the watch to A at the end of the race.

220. A finds an unregistered bond of the Y corporation which was lost by B. A borrows money from C and puts up

the bond as security. Here, by operation of law, A is B's bailee and, by actual delivery, C is A's bailee. C could not refuse to return the bond to A when the debt was paid on the ground that A did not own it, but if C did make a delivery to B he would be protected.

194. Distinctions.-Bailments and sales are often confused. Valuable rights often depend on whether a contract is one of sale or one of bailment. When the rule is stated, a sale transfers the title or general ownership of the property while a bailment transfers only the possession, very little is explained, for the difficulty is to know just in what transactions the title is transferred as well as the possession. A barter differs from a bailment in that the identical property is not to be returned, nor is money to be paid, but some other property is to be delivered in exchange for it.

EXAMPLES

221. A delivers fifty bushels of wheat to B to be made into flour. This is a bailment and B's creditors cannot attach or levy upon the flour.

222. A delivers apples to B to be made into cider, the cider to be sold by B and the proceeds equally divided between A and B. This has been held to be a bailment.

223. A delivers to B a bushel of oats for B's horses, B promising to "return the oats" on the following day. This is evidently a barter, for the identical oats are not to be returned.

The importance of this distinction between bailments and the other two transactions, sale and barter, becomes evident when the subject matter is lost or destroyed. If, for example, the wheat or apples were burnt up in a fire caused by lightning, the loss in each

case would fall on A, but if the oats were destroyed the loss would fall on B.

If the subject-matter of a bailment is mixed with the goods of the bailee with the permission of the bailor, the bailee and the bailor become owners in common of the mass. In some cases, however, title is intended to pass and the transaction is a sale.

EXAMPLES

224. A, the owner of a grain elevator, receives grain from B, it being understood that A has the right to mix the grain with other grain in the elevator and to take from the entire mass at will, but that he is obliged to return a like amount to B or pay the market price. This is a sale.

225. If at the time the grain is deposited it is agreed that B may demand the grain at any time and that A will keep enough grain in his elevator to cover the deposit, the transaction is a bailment.

These rules are sometimes changed by local statutes which provide that all transactions similar to those in examples 223 and 224 shall be deemed bailments.

195. Classification of bailments.-The reader who will take the trouble to examine several text-books on this subject will be astonished to notice that writers seem to contradict each other, one saying that bailments may be divided into five classes, another making the bald statement that bailments may be divided into three classes and still another dividing them into two classes. The truth of the matter is that bailments may be variously classified and that no classification is important except in so far as it facilitates the formulation of rules governing the rights and liabilities of parties.

The division of bailments into those for the sole benefit of one party and those for the mutual benefit of both

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