aid of a court he may do so, and thereby is revested with title.70 The injured party is not even allowed the alternative of proceedings in equity for rescission, his legal remedy being thought adequate.71

This is nothing else than specific enforcement of the obligation of the fraudulent buyer to return the title wrongfully acquired by him. Moreover, the seller must, as a condition of recovery, return to the buyer whatever was paid for the goods.72 Generally the buyer will refuse to receive it, and the seller may then tender it and recover as if he had actually returned it.73 Let it be supposed the price was itself in the form of a chattel. When the defrauded seller tenders back this chattel, and the tender is refused and the seller thereupon is allowed to recover what he had parted with or its full value the relief necessarily proceeds upon the assumption that the seller has restored title to the buyer in the chattel given as the price, without the buyer's assent.74 If the property in question is land and the buyer has fraudulently acquired a conveyance, the seller must go into equity in order to get a reconveyance, but in the case of a sale of goods he can regain title to what he has parted with and revest the buyer with title to the consideration without this procedure.

§ 1371. So in cases of mistake, duress, infancy, or insanity. The same rules of law apply where rescission of title is allowed

70 Wheelden v. Lowell, 50 Me. 499. See also Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485, where on the assertion by the buyer of a warranted buggy of a right of rescission for breach of warranty, he was held entitled to take without breach of the peace from the seller's land property given by the buyer as the price of the buggy.

71 Buzard v. Houston, 119 U. S. 347, 30 L. Ed. 451, 7 S. C. Rep. 249; Walter v. Garland Automobile Co., 164 N. Y. App. D. 183, 149 N. Y. S. 653.

72 Save in exceptional cases. See 21 L. R. A. 206, note, and 1 L. R. A. (N. S.) 474.

73 Barnett v. Speir, 93 Ga. 762, 21 S. E. 168; Porter v. Leyhe, 67 Mo. App. 540. See also Milliken v. Skillings, 89 Me. 180, 36 Atl. 77.

74 In Nolan v. Jones, 53 Iowa, 387, 5 N. W. 572, one party to an exchange, induced by fraud, was allowed replevin to recover his goods. The court said that because of the fraud the transaction was "void," but also said the plaintiff might have "affirmed" it. To the same effect is Porter v. Leyhe, 67 Mo. App. 540. Compare Barnett v. Speir, 93 Ga. 762, 21 S. E. 168; Haase v. Mitchell, 58 Ind. 213, also cases of exchange.

for other reasons than for fraud-as mistake, duress, infancy, or insanity.75 So if an infant pleads his infancy in order to prevent recovery of the price of goods, the seller may replevy the goods.76 This necessarily means that the seller by his own election enforces specifically the obligation of the infant to return the goods which he will not pay for. To say that the infant's plea is an assent to retransfer the goods is to state a fiction. It is immaterial whether the infant assents or expressly dissents.

§ 1372. So in case of unpaid seller.

The remedies allowed to an unpaid seller after the property has passed to the buyer, other than the right to recover the price, illustrate the same principle. A seller with a lien may by his own act take title out of the buyer and revest it either in himself or in a third person to whom a resale of the goods is made. The English law formerly denied this," but the Sale of Goods Act now allows at least the right of resale,78 and the right of resale necessarily involves a transfer of title without the assent of the owner of the property. It does not help the matter to imply a fictitious agency calling the seller the agent of the buyer to resell. In this country the seller's right, not simply to resell the goods, but to rescind the transfer of title and take it himself, is well recognized." The seller in thus acting is foreclosing his lien. When he chooses to resell on account of the buyer it is a foreclosure by sale. When he elects to retake title to himself it is a strict foreclosure. In the case of land a bill in equity might be necessary. In the case of goods the result is reached more summarily.

§ 1373. Rescission of title by buyer.

In the converse case, where the buyer seeks to rescind a transfer of title to him, whether for fraud, mistake,81 or breach of

75 Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 461, 123 Am. St. Rep, 609. See, however, as to infancy, supra, § 234.

"Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105.

"Martindale v. Smith, 1 Q. B. 389;

80

Page v. Cowasjee Eduljee, L. R. 1
P. C. 127.

78 Williston, Sales, § 544.
79 Id., §§ 545, 555.
80 See infra, § 1525.
81 See infra, § 1570.

warranty,82 the same rule again prevails. The buyer may, if he chooses, recover the price that he has paid, and is not obliged to sue for the difference in value between the goods which he has acquired and the price which he paid. He recovers the price in full if he elects to do so. This election necessarily operates as a transfer of the title back to the seller. 83 The doctrine which permits one whose goods have been converted to "waive the tort" and sue for the value of the goods, or the price for which the converter has sold them, is another case where a plaintiff transfers title by his own action, without any assent of the defendant.84 Indeed, even where trover is brought for the conversion, it is impossible to justify the existing rule of damages which gives the injured party the full value of the goods except on the theory that the title to the goods is transferred to the defendant. If the plaintiff were regarded as continuing the owner of the goods, he should recover damages equal in amount only to the loss which be suffered by the deprivation of possession of the property. If the goods were destroyed, of course this would equal their value; but if they still remained in existence, it might well be a comparatively small amount.85

§ 1374. Conditional sales.

A case which presents a still closer analogy to that primarily under discussion arises in the law of conditional sales.86

82 See infra, § 1461.

83 Thus if a defrauded buyer rescinds a sale and subsequently takes the goods without the seller's assent, the buyer is a converter, and the seller must sue him as such, and not as a buyer. Teeter v. Cole Mfg. Co., 151 N. C. 602, 66 S. E. 582.

84 See Keener, Quasi-Contracts, 159. 85 It is actually held that the property in the goods passes to the defendant either when judgment is given for the plaintiff or when the execution upon the judgment is satisfied. See Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424. So late a time as either of these

days seems somewhat inconsistent

In

with the rule of damages, because in order to justify full damages it would seem on theory that the plaintiff must have had a cause of action justifying such damages at the time the action was brought, an assumption which can be sustained as a universal rule only on the theory that the property had passed to the defendant at that time. If we take the time of transfer, however, to be the later period when judgment is rendered or execution satisfied, there is still a case where the ownership is transferred from one party to the other without the assent of both parties and without the aid of a court of equity.

86 See supra, § 735.

such sales the seller may recover the full price, though the title to the goods has not been transferred. It is further generally held that though the seller may sue for and recover earlier instalments of the price without thereby losing his right in the goods, if he sues for the whole price or the last instalment thereof, he cannot thereafter reclaim the goods, although according to the contract the title was to remain in the seller until the price was paid. Thus the seller loses a title which by

the contract was still to remain in him, and the buyer acquires it when and because the seller elects to sue for the price. So if a seller transfers a note given as security for the price of the goods he has been held to vest title absolutely in the buyer.89 It may be added that if the seller reclaims the goods, he is usually denied recovery thereafter of any unpaid balance of the price.90 A further illustration is found if the seller under a conditional sale attaches or levies execution upon the property sold. Even in jurisdictions which do not regard the mere act of suing for the price a binding election, such a seizure debars the seller from thereafter reclaiming the goods. In effect it transfers the property to the buyer.91 The same rule is applied in the case of chattel mortgages. Even in jurisdictions where it is held that a mortgage vests a legal title in the mortgagee, attachment of the goods by him deprives him of all rights of ownership in the property.92

§ 1375. Executory contracts.

A somewhat analogous doctrine of self-help exists in the law

it the full amount due him. Of course, as in the case of a mortgage, the seller should be restricted to satisfaction of his claim with interest. If, therefore, judgment for the price is satisfied in part, this should be credited, and any excess over the amount due, which may be acquired by seizing and disposing of the goods should be returned to the buyer. Though the cases cited at the beginning of this note may be erroneous for the reason just given, the error does not relate to the matter for which the cases are here cited; namely, the power of a court of law to treat an election on the part of the plaintiff as effectual to transfer title to property to the defendant. Suing for the earlier instalments of the price would probably nowhere be held inconsistent with a subsequent claim to resume possession of the goods. Haynes v. Temple, 198 Mass. 372, 84 N. E. 467. 89 Winton Motor Carriage Co. v.

Broadway Automobile Co., 65 Wash. 650, 118 Pac. 817, 37 L. R. A. (N. S.)

71.

90 See supra, § 736.

91 Tanner Engine Co. v. Hall, 89 Ala. 628, 7 So. 187; Montgomery Iron Works v. Smith, 98 Ala. 664, 13 So. 525; Fuller v. Eames, 108 Ala. 464,19 So. 366; Albright v. Meredith, 58 Ohio St. 194, 50 N. E. 719. But in Champenois v. Tinsley, 90 Miss. 38, 42 So. 89, it was held that the acceptance by the seller of a mortgage by the buyer of the goods conditionally sold did not waive the title reserved in a prior conditional sale. See also Cutting v. Whittemore, 72 N. H. 107, 110, 54 Atl. 1098; Kirch v. La Tourette, 91 N. J. L. 35, 102 Atl. 873. 92 Libby v. Cushman, 29 Me. 429; Whitney v. Farrar, 51 Me. 418; Evans v. Warren, 122 Mass. 303; Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73; Haynes v. Sanborn, 45 N. H. 429. But see 7 Cyc. 55.