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
65 The Uniform Sales Act provides: Sec. 63. Action for the price. - (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.
66 Malcolmson v. Reeves Pulley Co.,
167 Fed. 939,93 C. C. A. 339; Hoffman v. Goeline, 172 Fed. 113, 96 C. C. A. 318; Grier v. Simpson, 8 Houst. 7; Deere Co. v. Gorman, 9 Kans. App. 675, 59 Pac. 177; Singer Mfg. Co. v. Cheney, 21 Ky. L. Rep. 550, 51 S. W. 813; Fairbanks v. Heltsley, 135 Ky. 397,122 S. W. 198, 26 L. R. A. (N. S.) 248; Indiana Tie Co. v. Phelps (Ky.), 124 8. W. 833; Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Tufts v. Grewer, 83 Me. 407, 22 Atl. 382; Greenleaf v. Gallagher, 93 Me. 549, 45 Atl. 829, 74 Am. St. Rep. 371; Green-leaf v. Hamilton, 94 Me. 118, 46 Atl. 798; Arons v. Cummings, 107 Me. 19, 78 Atl. 96, 31 L. R. A. (N. 3.) 942; Maine Farmers' Pub. Co. v. Rowe, 108 Me. 194, 79 Atl. 471; Tufts v. Bennett, 163 Mass. 398, 40 N. B. 172; McCormiok Machine Co. v. Balfany, 78 Minn. 370, 81 N. W. 10, 79 Am. St. Rep. 393; Funke v. Allen, 54 Neb. 407, 74 N. W. 832, 69 Am. St. Rep. 716; Backes v. Schlick, 82 Neb. 289, 117 N. W. 707; Massman v. Steiger, 79 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?
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 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
N. J. L 442, 75 Atl. 746; Roswel. Nursery Co. v. Mielens, 18 N. Mexl 417, 137 Pac. 579; Unexcelled Fire Works Go. v. Polites, 130 Pa. St. 596, 18 Ad. 1058, 17 Am. St. Rep. 788; Jones v. Jennings, 168 Pa. St. 403, 32 Atl. 51; Puritan Coke Co. v. Clark, 204 Pa. St 656, 64 Atl. 350 [but see Bal-le&tine v. Robinson, 46 Pa. St. 177; Henderson v. Jennings, 228 Fa. 188, 77 At! 453, 30 L. R. A. (N. S.) 827;] Gammage v. Alexander, 14 Tex. 414; Tufts v. Lawrence, 77 Tex. 526, 14 S W. 165; Rider v. Kelly, 32 Vt. 268, 76 Am. Dec. 176; American Hide & Leather Co. v. Chalkley, 101 Va. 458,463,4 S. E. 706; Manning Mfg. Co. 9. Miller, 87 Vt. 456, 89 Atl. 470; Acme Food Co. v. Older, 64 W. Va. 255,61 8. B. 236, 17 L. R. A. (N. 8.) 807. See also Morris v. Cohn, 56 Ark. 401,17 8. W. 342; Dowagiac Mfg. Co. v. Mahon, 13 N. Dak. 516, 101 N. W. 903.
67 Thus if the buyer resells the goods to a purchaser for value without notice, the latter gets an indefeasible title. See infra, Sec. 1480. So the wfler may "affirm" the sale and sue for the agreed price - a remedy which proceeds upon the assumption that title is in the buyer. See Schwarts 9. McOoskey, 156 Fa. St. 258, 264, 27 Atl. 300. But if the buyer had acquired merely possession by fraud, not even a purchaser for value with out notice could get title. Lightman v. Boyd, 132 Ala. 618, 32 So. 714; Baehr v. Clark, 83 Iowa, 313 49 N. W. 840, 13 L. R. A. 717; Rohr-bough v. Leopold, 68 Tex. 254, 4 S. W. 460; McDonald v. Humphries (Tex. Civ. App.), 146 S. W. 712.
68 Atlas Shoe Co. o. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A. (N. S.) 245; Thurston v. Blanchard, 22 Pick. 18, 33 Am. Deo. 700; Moody ». Drown, 58 N. H. 45; Baird v. Howard, 51 Ohio St 57, 36 N. £. 732, 22 L. R. A. 846, 46 Am. St. Rep. 560. In Atlas Shoe Co. v. Bechard, the action was maintained against the fraudulent buyer's assignee for creditors.
69 John V. Farwell Co. v. Hilton, 84 Fed. 293; Openhym v. Blake, 157 Fed. 536, 87 C. C. A. 122; Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411, 95 Pac. 1029; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Hall v. Gilmore, 40 Me. 578; Ayers v. Farwell, 196 Mass. 349, 82 N. £. 35; Skinner v. Michigan Hoop Co., 119 Mich. 467, 78 N. W. 547, 75 Am. St. Rep. 413; Field v. Morse, 54 Neb. 789, 75 N. W. 58; Baker v. McDonald, 74 Neb. 595, 104 N. W. 923, 1 L. R. A. (N. S.) 474; Sisson v. Hill, 18 R. 1.212, 26 Atl. 196, 21 L. R. A. 206.
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.