of executory bilateral contracts. If a party to such a contract is guilty of a material breach, the other party may elect to rescind it. Courts have sometimes endeavored to make out mutual assent by calling the breach or repudiation of the wrongdoer in such a case an offer to rescind; but this is an obvious fiction. In truth, the wrongdoer is under an obligation to permit the rescission of the contract, and the injured party is allowed to enforce the obligation by treating the contract as rescinded without the aid of a court.93 Finally, the most striking analogy exists in the rule universally prevailing in the United States, that one who is under a unilateral obligation to transfer chattel property to another may by proper tender of the chattels discharge his own obligation, and in effect make the creditor the owner of them.94

§ 1376. Summary of reasons for allowing seller to recover price.

The illustrations which have been given show that the allowance of what is in effect specific performance of an obligation, or the transfer of ownership at the election of one party without the other's assent and without resort to a court of equity, is not unusual in our law, and most persons would hesitate to say that in these illustrative cases the plaintiff should be denied the specific execution of the obligation due him. Courts of equity have confined the right of specific performance of affirmaative obligations in regard to personal property so narrowly that either injustice must be done or the necessary remedy must be sought in another way. Indeed, it may be questioned whether the remedy of a bill in equity would be so satisfactory in the case of ordinary sales of goods as the shorter cut afforded by courts of law. If the proper equitable remedy cannot be adequately reproduced by the procedure of a court of law, it is doubtless wrong for it to invade the province of equity. Likewise the results which equity with its elastic decrees reaches in analogous cases must be taken as the standard of permissible relief, and it is only to reach such results by the judgment of a

See infra, §§ 1465 et seq. In France and Louisiana the injured

party brings an action in court for rescission of the contract.

94 See infra, § 1818.

court of law or by permitting an injured person to work out his own redress, that relief in these summary ways should be allowed. But where the same result can be reached at law as in equity, the court of law not only may invade the province of equity, but it should do so if the rule of equity is more just. Especially should it do so if the court of equity for technical reasons refuses to take jurisdiction of the case, and the court of law must give the only available remedy. Where a seller has prepared goods of a special and peculiar kind under a contract and the buyer wrongfully refuses to take them, this reasoning is particularly applicable. Damages are not an adequate remedy for the seller. He does not want the goods himself and he cannot resell them readily, yet they are not without value, and if he is confined to the difference between their value and the contract price, a substantial diminution from the price would be made. Further, a court of equity will not take jurisdiction of the case. Though there is the same reason for doing so that exists in the case of a contract for the sale of land, so far at least as the seller's side of the bargain is concerned, courts of equity have been indisposed to extend their jurisdiction to such cases. 95

§ 1377. The Civil law.

It is worth noticing that in the Civil law the seller in entitled to recover the full price when the buyer is in default. By the classical Civil law the property never passed until delivery of the goods. 96 So that in any case to allow the seller to recover the full price when the buyer refused to accept delivery necessarily involved recovery of the price by one who had not transferred the property in the goods." The Roman law, indeed, went fur

95 It should perhaps be said, in order to prevent misapprehension, that the rule contended for is applicable only where the contract has been broken by the buyer after the goods have been procured or manufactured. If the buyer repudiates his contract or countermands his order before the goods have been manufactured or procured by the seller, he ought not to be allowed,

and generally is not allowed, to enhance the damage of the buyer by manufacturing or procuring the goods. See supra, § 1298.

96 Moyle, Contract of Sale in the Civil Law, 110.

97 Pothier, Contract of Sale, § 280: "When the contract contains no provision for credit, the seller may immediately commence this action (actio venditi) against the buyer upon mak

ther than this. Even though the goods had been destroyed by accident before delivery, and, therefore, before transfer of the property, the risk was thrown on the buyer, and the seller was allowed to recover the price.98 It may, therefore, be urged that the Roman law virtually made the promises of buyer and seller independent, and that as such a doctrine is not only clearly inconsistent with our law, but also with fundamental principles of justice, no desirable suggestion or analogy can be derived from that system of jurispridence. The rule of the classical Roman law in regard to risk is, however, generally abolished to-day in Europe; 99 and the recognition of the dependency of the promises in a bilateral contract is as completely recognized, perhaps more completely recognized, on the Continent of Europe than in England.1 But in spite of this, the rule in regard to the recovery of the price persists. This is true in France. So the old German Commercial Code, which was in force not simply in Germany but also in Austria, and is still in force in the latter country, provides: "If the buyer is in default in accepting the goods, the seller may deposit them, at the risk and expense of the buyer, in a public warehouse or otherwise in a safe manner." The new Commercial Code in force throughout the German Empire since 1897 copies this provision. Even in Scotland the same rule prevails to-day, for the rule of the Civil law is there preserved by the Sale of Goods Act.5

ing the offer which he ought to do to deliver the thing, provided it is not already delivered. If after the contract the thing ceases, without the fault of the seller, to be in a situation to be delivered, the seller is not thereby deprived of his right of commencing his action for the payment of the price. But while the seller is in default in delivering the thing sold, he cannot demand the price of it. "See supra, § 947

* Supra, § 953.

1 Supra, §§ 899 et seq.

Code Civil, Arts. 1138, 1652; 2 Troplong, Vante, par. 603. 'Handelsgesetzbuch, § 343. "Handelsgesetzbuch of 1897, § 373. In commenting upon this provision

Lehmann and Ring say in their Kommentar zum Bürgerlichen Gesetzbuche und seinen Nebengesetze (Berlin, 1901), ii, 101: "Since the seller is no longer responsible for the goods, he acquires the right to the price and must only make allowance for what he saves in consequence of being freed from performance, or what he acquires or wrongfully fails to acquire through other application of his labor. He can also recover from the buyer indemnity for the necessary expenses for the care and custody of the goods. He must even be allowed a claim for storage if he is a merchant."

5 "Section 49. (3) Nothing in this section shall prejudice the right of the seller in Scotland to recover in

5

§ 1378. Measure of damages for non-acceptance of goods. Where a buyer of goods under an executory agreement breaks his contract by refusing to accept the title to goods which are in existence, and either the local law does not allow the virtual specific performance previously discussed, or the seller does not wish that relief, it is to be observed that if the buyer had accepted and paid for the goods as he was bound to do by his contract, the seller would have been obliged to surrender their ownership, and to incur all the expense of delivering them at the time and place agreed on, and he would on the other hand. have received the price or become entitled to it. The buyer's wrong leaves him still owner of the goods and frees him from any expense of delivering them, and, on the other hand, deprives him of the price. His loss then is the difference between the value of the goods and the price which he was to receive for them; and if he is saved any expense by not being obliged to put the goods in deliverable condition or to transport them to a particular place, this also must be taken into account. But the essential element of damage is conveniently expressed by the formula the difference between the contract price, that is, the amount of the obligation which the buyer failed to fulfill, and the market price, that is, the value of the goods which the seller has left upon his hands. As the market price varies, with time and place, it is essential to fix upon the market price at the time and place provided in the contract. The matter

terest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be." Chalmers, in his annotation of the section, quotes as the authority for this provision, Mercantile Law Commission, 1855 (2d report), p. 47: "The seller may sue the purchaser for the price and interest, whether the goods sold are specified or not, provided goods according to the contract have been tendered to the purchaser."

Supra, §§ 1365–1377.

7 The Uniform Sales Act provides: (1) Where the buyer wrongfully neglects or refuses to accept and pay

may, therefore, be summarized-that the measure of damage is the difference between the contract price and the market price of the goods at the time when and the place where the contract should have been performed. If the seller, after waiting some time after the breach, resells the goods at a higher price than that which prevailed at the time of the breach, the defendant cannot have the benefit of the increase. If the market value for the goods equals or exceeds the contract price, though a legal wrong has been committed, the plaintiff has suffered no damage thereby and, though entitled to judgment, can only get nominal damages. 10 As the burden is upon the plaintiff to show what damage, if any, he has suffered, it is incumbent upon him, in order to make out a case for recovery of more than nominal damages, to show that the market value of the goods is less than the contract price.11

no time was fixed for acceptance, then at the time of the refusal to accept."

For decisions under this section, see Urbansky v. Kutinsky, 86 Conn. 22, 84 Atl. 317; Home Pattern Co. v. W. W. Mertz Co., 86 Conn. 494, 86 Atl. 19; Progressive &c. Corp. v. Ansonia Foundry Co., (Conn. 1918), 105 Atl. 322; Rylance v. James Walker Co. 129 Md. 475, 99 Atl. 597; Bixler v. Finkle, 85 N. J. L. 77, 88 Atl. 846; Varley v. Belford, 156 N. Y. S. 597; Mosler Safe Co. v. Brenner, 100 N. Y. Misc. 107, 165 N. Y. S. 336; Michael v. Floridina Mfg. Co., 167 N. Y. S. 244. For the measure of damages in instalment contracts where the buyer is in default, see the analogous cases cited infra, § 1383, where the seller was in default.

Barrow v. Arnaud, 8 Q. B. 595, 608, per Tindal, C. J.; Yellow Poplar Lumber Co. v. Chapman, 74 Fed. 444, 42 U. S. App. 21, 20 C. C. A. 503; Hopkinsville Mill Co. v. Gwin, 179 Ala. 472, 60 So. 270; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 Pac. 1020; Hassell Iron Works v. Cohen, 36 Colo. 353, 85 Pac. 89; Ridgley v. Mooney, 16 Ind. App. 362,

45 N. E. 348; Lawrence Canning Co. v. Mercantile Co., 5 Kans. App. 77, 48 Pac. 749; Bonney v. Blaisdell, 105 Me. 121, 73 Atl. 811; Tufts v. Bennett, 163 Mass. 398, 4 N. E. 172; Houghton v. Furbush, 185 Mass. 251, 70 N. E. 49; Stock v. Snell, 213 Mass. 449, 100 N. E. 830; Kellogg v. Frohlich, 139 Mich. 612, 102 N. W. 1057; Brown v. Trinidad Asphalt Co., 210 Mo. 260, 109 S. W. 22; Funke v. Allen, 54 Neb. 407, 74 N. W. 832, 69 Am. St. Rep. 716; Massman v. Steiger, 79 N. J. L. 442, 75 Atl. 746; Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536, 18 Atl. 1058, 17 Am. St. Rep. 788; Jones v. Jennings, 168 Pa. St. 493, 32 Atl. 51; Huguenot Mills v. Jempson & Co., 68 S. C. 363, 47 S. E. 687, 102 Am. St. Rep. 673; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L. R. A. (N. S.) 807. But see Diels v. Kennedy, 88 Neb. 777, 130 N. W. 740.

'Jamal v. Dawood, [1916] 1 A. C. 175.

10 Wheeler v. Cleveland, 170 Ala. 426, 54 So. 277; Brooke v. Laurens Milling Co., 84 S. C. 299, 66 S. E. 294.

11 Benjamin v. Maloney, 155 Fed.