the conditions of that section. In the one case, it is a privilege Sect. 48. accorded to a bond-fide second buyer irrespective of the position or default of the original seller [Sect. 25 (1)]; in the other, it is right vested, under certain conditions, in the original seller, of which any second buyer from him obtains the benefit [Sect. 89 (1) (c) as qualified by Sub-sect. (3) of the present section].

(e) Goods of a perishable nature. "It is admitted that perishable articles may be resold. It is difficult to say what may be considered as perishable articles, and what not."1 In Maclean v. Dunn 2 (1828) the rule as to re-sale was extended to articles whether perishable or not, on the ground that "in that respect there is no difference between one commodity and another." In the words of Best, C. J., "it is a practice founded on good sense to make a re-sale of a disputed article, and to hold the original contractor responsible for the difference."3 No definition of "perishable" is given in the Act.

(f) Notice. No special form is provided or required. Any reasonable notice will be sufficient.1

(g) "Reasonable time" is a question of fact (Sect. 56).

(h) "Pay or tender." See Sect. 41, note (e) ante, p. 191. (i) Recovery of damages. As to the measure of damages see Sect. 50.

(k) Reservation of right of re-sale. See COM. infra, p. 232.

COMMENTARY.

goods and tract under

rescinding con

former law of Scotland.

Under the former law of Scotland questions as to re- Re-selling selling the goods and rescinding the contract could only arise in connection with stoppage in transitu. Previous to the commencement of the transitus by delivery to the carrier, the seller, being undivested owner, could do what he pleased with his own. In the event of his breach of contract, the buyer became liable in damages without any right to control the disposal of goods over which he never had any right of property. In a purely personal contract, a breach by one party could not operate rescission in the

1 Per Best, C. J., in Maclean v. Dunn (1828), 4 Bing. 722 at p. 728. 2 4 Bing. 722. 34 Bing. at p. 728. 4 Maclean v. Dunn (supra). See also Jacques, Serruys, and Co. v. Watt (12th February 1817), F.C. "If the re-sale was conducted by the vendor in a fair and reasonable manner, the original purchaser who was in default would have no right to complain."-Blackburn on Sale, p. 446.

Sect. 48.

Uncertainty in

law of Scot

land after

stoppage in

transitu.

sense of freeing both parties from obligation, but freed the party not in fault, and left his remedy against the other unimpaired.

But, after the doctrine of stoppage in transitu had been imported from England into Scotland, great uncertainty introduction of prevailed as to the footing on which the seller held the goods when they had been returned into his possession after the stoppage. In England, he could only hold them by a right analogous to his former lien for the price, but in Scotland, the seller's former right being one of ownership, it was doubted whether on regaining possession he became reinvested in that right, or whether he held the goods on the same footing as the seller in England. The conclusion generally arrived at was that the seller was replaced in the position he would have occupied had he never parted with the goods, and thus stoppage in transitu came to have a much more powerful effect in Scotland than in England whence the right was derived.1

Under former law, contract

not rescinded.

Effect of ex

re-sell.

2

Neither in Scotland nor in England was the contract rescinded by the buyer's default, unless rescission was expressly stipulated, and therefore the dictum referred to in connection with Sect. 45 as attributed by Bell to Lord Thurlow in Allan, Steuart, and Co.'s Case was not law before this Act, and is clearly inconsistent with this section.

3

Where the contract expressly stipulates a power to press power to re-sell, the sale is rescinded, but not to the effect of totally setting it aside so as to prevent any claim against the buyer in respect of his breach. The effect upon the buyer's right of this species of rescission may, however, be very important. "He runs all the risk of re-sale without any

354.

1 See M. P. Brown on Sale, p. 441; Benjamin on Sale, pp. 898 et seq. 2 As to Scotland, see Stoppel and Co. v. Stoddart (1850), 13 D. 61; Adamson, Howie, and Co. v. Guild (1868), 6 Macp. 347, per Lord Barcaple at p. But see Booker and Co. v. Milne (1870), 9 Macp. 314, where the sale was said to have been rescinded by the seller. The question at issue did not involve any ranking for damages upon the bankrupt buyer's estate, and probably it was not intended by the so-called rescission to exclude such a claim. As to England see Blackburn, p. 484; Benjamin, p. 898.

3 Ante, p. 223.

4 In House of Lords sub nom. Jaffrey v. Allan, Stewart, and Co. (1790), 3 Pat. App. 191. See Bell's Com. i. 250, 251.

chance of profit, for he has clearly no right to the surplus Sect. 48. if the goods are sold for a higher price."1

It is not necessary to obtain a judicial warrant for the Judicial re-sale, though Bell suggests that such is the "correct

course.'

2

warrant.

1 Benjamin, p. 796. The converse is thus shown:-"If goods are sold for £500, and after being stopped in transitu become worth £1000 by a rise in the market, the vendor must deliver them to the vendee or his creditors upon receiving the £500" (M. P. Brown, p. 441). If the sale is rescinded this profit goes to the seller.

2 See Hain v. Laing and Sons (1853), 15 D. 667. In many cases where a judicial warrant had been obtained, the Court treated the fact as unimportant, e.g. Warin and Craven v. Forrester (1876), 4 Ret. 190; Affd. (1877) 4 Ret. H.L. 75.

3 Bell on Sale, p. 109. Bell had not the benefit of the later decisions.

Sect. 49.
ACTION FOR
PRICE.

PART V.

ACTIONS FOR BREACH OF THE CONTRACT.

Remedies of the Seller.

49.-(1.) Where, under a contract of sale,(a) the property in the goods has passed to the buyer," and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

(2.) Where, under a contract of sale," the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.(9)

(3.) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest 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.(^)

NOTES.

(a) "Contract of sale." Defined Sects. 1 and 62 (1).
(b) Property passed to buyer. See Sects. 17 and 18.

The Sect. 49.

(c) Buyer's failure to pay price. See Sects. 27 and 28. refusal to pay must be "wrongful." The mere fact of the property having passed will not give the seller a right of immediate action for the price, unless, under the express or implied terms of the contract, the price is immediately payable.

(d) "Action' includes counterclaim and set off, and in Scotland condescendence and claim and compensation." Sect. 62 (1).

(e) Right of action. See also Sect. 57.

(f) "Day certain irrespective of delivery." See Coм., infra, p. 236.

(g) "Appropriated to the contract." See Sect. 18, Rule 5, and COM., ante, p. 95.

(h) "Interest on the price." Sects. 54 and 61 (2) seem to reserve the seller's right to interest in Scotland, thus rendering this provision superfluous. See Coм., infra, p. 236.

COMMENTARY.

remedies in Scotland

Under this and the following section the seller's remedies Seller's in Scotland are somewhat altered. Formerly, in the event of a breach by the buyer, the seller had in every case alter- altered. native remedies; (1) he might sue for the price provided he continued in a position to offer the goods, or (2) he might retain the goods and claim damages, subject to an obligation. to lessen the damage by a re-sale where a market was available.2 But under the Act where the property has not

1 Bell's Com. i. 472. Substituted goods, though of the same quality, will not do-Thomson Brors. v. Thomson (1885), 13 Ret. 88.

2 The obligation to re-sell has been strangely misunderstood. Thus in Thomson Brothers v. Thomson (1885), 13 Ret. 88, the Sheriff-Substitute found that the seller had not the alternative remedy of an action for the price, and that re-sale and damages was his only remedy. This view was founded on Warin and Craven v. Forrester (1876), 4 Ret. 190, Affd. (1877), 4 Ret. H. L. 75, where Lord President Inglis said: "Re-sale is the only proper remedy for parties in the position of the pursuer to adopt." But in Warin's Case there was no question of an action for the price, and the Lord President's remark applied only to the seller's obligation as stated in the text. The SheriffSubstitute's judgment in the case of Thomson Brothers was not supported by the Court. Another instance of misapprehension of the principle of the seller's remedy in Scotland prior to this Act, is furnished by the Sheriff Court case Cuthill v. M'Lachlan (1874), Guthrie's Sel. Cas. 1st ser. 520, where the seller's rights as undivested owner were entirely lost sight of, and his position was treated as analogous to that of a buyer having the custody of rejected goods. No such analogy existed, for, in the case of the buyer, the goods were clearly not his property, and he merely held them as involuntary custodier or bailee for the seller. See as to the alteration in the seller's duty of custody in Scotland Coм., Sect. 37 ante, p. 177.