tract is one for work and labor.56 It may be doubted whether the States which have adopted one or the other of these views under the Statute of Frauds would generally admit, as a consequence of their decisions, that the contracts in question should be treated as contracts for work and labor in such a sense that the price must be paid for the work rather than for the title to the property. It would be indeed unfortunate if the strained construction which has been adopted in order to evade the Statute of Frauds should be applied in other classes of cases. It should rather be said, and probably would be, that though a contract may not be a contract of sale within the meaning of the Statute of Frauds, if it is contemplated that special work and labor by the seller shall go into it, it is, nevertheless, a contract of sale for other purposes. There can, in fact, be no doubt that the price is promised for the completed article, not for the work and materials which have gone into its manufacture. The reason, therefore, on which Bement v. Smith57 was rested cannot be supported. It is not generally adopted to-day, 58 and the New York court has long ceased to rest the buyer's right to the price on this reason. A later New York decision 59 laid down the rule broadly that any seller might at his option store or retain the property for the vendee and sue him for the entire purchase price. The doctrine is stated as applicable not only to cases where the title has passed, but to cases where the buyer's default consists in not letting it pass.60 This decision and the rule laid down therein have been very influential in other jurisdictions, and cases which refuse to confine the seller to the difference between the contract price and the market price generally go back to this New York decision for their foundation. course, if the seller is entitled to the price, the buyer must be entitled to the goods. At what moment the title passes to him is not much discussed in the decisions, but the statement of the rule that the seller may store or retain the property for the buyer

See supra, § 509. 15 Wend. 493.

It was, however, followed in Ballentine v. Robinson, 46 Pa. St. 177. "Dustan v. McAndrew, 44 N. Y.

72.

Dustan v. McAndrew, 44 N. Y.

Of

72, 78, per Earl, C., and see cases cited in the preceding section. The same statement is expressly applied to executory contracts of sale in Ackerman v. Rubens, 167 N. Y. 405, 60 N. E. 750, 53 L. R. A. 867, 82 Am. St. Rep. 728.

implies that when the seller deposits the goods with a third person for the buyer, or gives notice to the buyer by suing for the price or otherwise, that he himself is holding the goods for the buyer, either the title thereupon passes, or, what amounts to the same thing, the rights of the parties will subsequently be adjusted as if it had passed at that time.61 The remedy thus allowed is neither more nor less than specific performance of the contract. In a court of equity a contract for a purchase of land is enforced by a decree ordering the defendant to pay the price upon the transfer of title. In the case of a sale of goods the New York court and other courts following its rule allow the seller by force of his own expressed volition to make the buyer owner in spite of the buyer's dissent, and thereupon to recover the price.

1367. Restriction of New York rule.

Some States restrict the application of the New York doctrine to cases where the goods contracted for are of a peculiar kind, not readily salable on the market and for which, therefore, a market price cannot readily be fixed.62 And in this restricted form the principle is adopted in the Uniform Sales Act.63

61 Illustrated Postal Card Co. v. Holt, 85 Conn. 140, 81 Atl. 1061. It would follow that thereafter the risk of loss must be upon the buyer, and this is borne out by the reasoning in Neal v. Shewalter, 5 Ind. App. 147, 154. The property in question in that case after having been wrongfully refused by the buyer was destroyed by fire. The court said the goods "remained the property of the [sellers]. They did not place themselves in the position of bailees for the [buyers]. Therefore, they would be entitled only to the difference between the contract price and the market price at the time and place at which the [buyers] became in default."

62 Kinkead v. Lynch, 132 Fed. Rep. 692; River Spinning Co. v. Atlantic Mills (R. I.), 155 Fed. 466; Fisher &c. Machine Co. v. Warner, 233 Fed. 527, 147 C. C. A. 413; Black River

Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; Gordon v. Norris, 49 N. H. 376; Smith v. Wheeler, 7 Or. 49, 33 Am. Rep. 698; Ballentine v. Robinson, 46 Pa. St. 177.

63 Sec. 63 (3). Although the property in the goods has not passed, if they cannot readily be resold for a reasonable price, and if the provisions of section 64 (4) are not applicable, the seller may offer to deliver the goods to the buyer, and, if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer's and may maintain an action for the price." The excepted case covered by Sec. 64 (4) is where damages would be unnecessarily enhanced. See supra, § 1298.

This provision of the Act will either enlarge or diminish the previously existing seller's rights in most of the States where it has been passed.

§ 1368. Rule often condemned, but just.

The doctrine, whether in its broadest or most restricted form, at first sight strikes most legal theorists as both anomalous and erroneous. It is sometimes condemned by text-writers.64 But the rule in its more limited form should be approved. The very fact of the wide adoption of a doctrine which is, and is known to be, contrary to the rule previously prevailing shows that the new doctrine must commend itself to the sense of justice of the courts, and if the matter be looked at broadly as one of justice rather than one of technical remedies permitted by the law, it will be hard to find a reason why the seller of land should be allowed to force the buyer to take it and pay the price while the manufacturer of goods for a special and peculiar order should not be. In such a case the seller may urge the very reason which courts of equity have habitually given for allowing specific performance of contracts in regard to sales of land, the inadequacy of damages. It is true the remedy is not mutual. The buyer is without specific redress if the seller refuses to make the goods, or refuses to give them up when he has made them. But the buyer is much less in need of the remedy of specific performance in this kind of case than the seller. If the seller does not manufacture the goods, the buyer can ordinarily do better by getting some one else to manufacture them than he could do by trying to force the seller to manufacture against his will. If the goods are already manufactured, the seller will rarely be disposed to withhold them from the buyer. The very fact that

Decisions under this section are: Illustrated Postal Card Co. v. Holt, 85 Conn. 140, 81 Atl. 1061; Urbansky #. Kutinsky, 86 Conn, 22, 84 Atl. 317; Home Pattern Co. v. Mertz &c. Co., 86 Conn. 494, 86 Atl. 19, 88 Conn. 22, 90 Atl. 33; Rylance v. James Walker Co., 129 Md. 475, 99 Atl. 597; Friedner v. Schneck, 163 N. Y. S. 150; Gourd v. Healy, 176 N. Y. App. D.

461, 163 N. Y. S. 637; Mosler Safe Co. v. Brenner, 100 N. Y. Misc. 107, 165 N. Y. S. 336; Michael v. Floridine Co., 167 N. Y. S. 244; E. H. Gallagher Trucking Co. v. Hudford Co., 169 N. Y. S. 83.

64 Mechem, Sales, § 1694; Burdick, Sales (2d ed.), § 364; Tiffany, Sales (1st ed.), § 103 (compare 2d ed., § 112). Benjamin does not refer to the doctrine.

the goods are of a special kind and have no general market value will preclude the seller from making any other disposition of them. Doubtless cases could be put, however, where the buyer is in need of specific performance, but the fact that he is allowed no such right either at law or in equity ought not to debar the seller from specific redress. The requirement of mutuality of remedy has perhaps been pushed to the extreme of a technicality in equity.65

§ 1369. Rule thought anomalous, and opposed by some authorities.

It is not, however, chiefly because the rule is unjust that fault is found with it; it is rather because it seems at variance with established legal principles. It seems anomalous that the seller should be able to force title upon the buyer by simply electing to do so. This is probably the reason why many jurisdictions reject the New York doctrine and follow the English law.66 Is it, however, so anomalous as is sometimes supposed

for one party to an obligation to enforce it specifically against the other without the aid of a court of equity? Is it not constantly done in cases where rescission of title to personal property is allowed as a remedy?

1370. Defrauded seller may specifically enforce his rights.

If a buyer obtains by fraud the seller's assent to transfer the ownership of goods, there is no doubt that the buyer gains title thereby.67 Yet there is no more doubt that the seller may regain his title by his own election so to do. Not only may he bring trover,68 but he may also bring replevin.69 And if the seller can regain possession of the goods peaceably without the