The rights of the seller enforceable by action against the buyer are personal rights as contrasted with the real rights of an unpaid seller discussed in chapter 7.

In some circumstances the seller may have a right of action for the price of the goods sold, in other circumstances he may have merely a right of action for damages.

As to damages, see 82.

As to interest or special damages, see 86.

Action includes counter-claim and set-off. See chapter 9.

Before the Judicature Acts the price of goods sold could be recovered under the common indebitatus counts. The count for goods sold and delivered was applicable when the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought. The count for goods bargained and sold was applicable when the property had passed to the buyer and the contract had been completed in all respects except delivery, and the delivery was not a condition precedent to the payment of the price. Now it is sufficient to show facts disclosing either cause of action.

Chalmers, Sale of Goods, 7th ed. 1910, p. 118; cf. 25 Halsbury, Laws of England, p. 121, note (a).

In order that the seller should be entitled to recover the price he must, as a general rule, and unless otherwise agreed, show that the buyer has received what he bargained for.

In other words, the property in the goods must have passed, delivery must have been made or tendered, if delivery was a condition precedent to payment, and the period of credit, if any, must have expired.

Mason & Risch v. Christner, 1918, 44 O.L.R. 146, 46 D.L.R. 710, S.C., 1920, 47 O.L.R 52, 48 O.L.R. 8, 54 D. L.R. 653; Geddes v. American National Red Cross 1920, 47 O.L.R. 163, 52 D.L.R. 547, S.C., reversed by the Supreme Court of Canada, 12th October, 1920; 25 Hals-bury, Laws of England, pp. 266-7.

As to the general rule that payment and delivery are concurrent conditions, see chapter 6, 61. As to the passing of the property from seller to buyer, see chapter 3.

Where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery, the breach by the buyer of his promise to accept and pay can affect the seller only by way of damages. The goods are still his. He may sell or not at his pleasure. But his only action against the buyer [as a general rule] is for damages for non-acceptance. He can in general recover only the damage that he has sustained, not the full price of the goods.

Benjamin, Sale, 5th ed., 1906, p. 805; Mason & Risch v. Christner, supra; cf. Vipond v. Sisco, 1913, 29 O.L.R. 200, 14 D.L.R. 129.

The parties may, however, agree that notwithstanding delivery the property in the goods shall not pass until payment in full; and that the price shall be payable in instalments or otherwise without regard to the passing of the property. In that event the case is taken out of the general rule which prevents a seller from recovering the price where he has not parted with the property in the goods, and after delivery is made or tendered the seller may recover the price in accordance with the contract.

Tufts v. Poness, 1900, 32 O.R. 51; Mason & Risch v. Christner, supra.

Again, the parties may agree that the price shall be payable on a day certain irrespective of delivery, and in that case an action will lie for the price if the day for payment has passed and the buyer wrongfully neglects or refuses to pay. In the absence of an agreement of this kind, the seller must in an action for the price prove that delivery of specific goods has been made or tendered. It follows that in the case of a contract for the sale of goods to be manufactured, the seller is not entitled to sue for the price until specific goods have been appropriated to the contract.

Mason & Risch, v. Christner, supra; as to the appropriation of goods to the contract, see chapter 3, 37. The Sale of Goods Act (Ont. s. 48; U.K. s. 49) provides: 48. - (1) Where, under a contract of sale, 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. In the United Kingdom the Sale of Goods Act further provides:

49. - (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. As to interest, see also 86.

In the United States the Uniform Sales Act (s. 63) provides :

63. - (1) Where under a contract to sell or a sale, 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 or the sale, the seller may maintain an action against him for the price of the goods.

(2) Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, 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. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it.

(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 [see 82, infra], 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.