If the title to personal property has been transferred, whether under a contract of exchange 15 or sale;16 the English law does not permit the transferror to rescind the transaction and revest the title in himself because he has not received the promised payment. This is probably true even though the seller has retained possession of the property, and therefore has a vendor's lien.18a The right of stoppage in transitu, although it may seem equivalent in effect to a right of rescission in the limited class of cases where it is applicable, does no more than continue the vendor's lien after the property has passed from his possession.17 In the United States, however, if the seller has not parted with possession of the goods, or has regained his lien by stoppage in transitu, he is allowed to rescind the sale on default of the buyer and to keep the goods as his own.18 But if the seller has parted with both possession and title, and is unable to regain possession by stoppage in transitu, there seems to be no authority, either in England or the United States, allowing him to bring trover or other action for the recovery of what he has transferred. 19
Benson v. Mole, 9 Phila. 66. See also Hratingg v. Dickinson, 7 Mass. 153, 5 Am. Dee. 34; Stone v. Welling, 14 Mich. 514. Cf. Atchison etc. R. Co. v. Van-wdstrand, 67 Kan. 386, 73 Pac. 113; Post v. Thomas, 212 N. Y. 264, 106 N. E. 69; Jackowski v. Illinois Steel Co., 103 Wis. 448, 79 N. W. 757.
15 Emanuel v. Dane, 3 Camp. 299; Power v. Wells, Cowp. 818.
16 Greaves v. Ashlin, 3 Camp. 426; Maitradale v. Smith, 1 Q. B. 389; Gfllaxdo. Brittan, 8 M. 6 W. 575; Page v. Cowasjee Eduljee, L. R. 1 P. C. 127. But see the early case of Langfort v. Tiler, 1 Salk. 113. See, also, Sale of Goods Act, Sec.48; Chalmers, Sale of Goods Act (3d ed.), 91.
16a Martindale v. Smith, 1Q. B. 389; Page 9. Cowasjee Eduljee, L. R. 1 P. C. 127. See Williston, Sales, f 544.
17 Williston, Sales, Sec. 539.
18 Uniform Sales Act, Sec. 61; Warren v. Buckminster, 24 N. H. 336; Bridgford v. Crocker, 60 N.Y. 627. See also Strickland v. McCulloch, 8 N. S. Wales, 324; Williston, Sales, J 555.
In Dustan v. McAndrew, 44 N. Y. 73,78, Earl, Com., in the opinion of the court said: "The vendor of personal property in a suit against the vendee for not taking and paying for the property has the choice ordinarily of either one of three methods to indemnify himself. (1) He may store or retain the property for the vendee, and sue him for the entire purchase price. (2) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the contract price."
This statement of the law is frequently quoted exactly or substantially and generally no distinction seems to be taken between cases where title to the property in question has passed and cases where title has not passed. Habeler v. Rogers, 131 Fed. 43, 45, 65 C. C. A. 281; Magnes v. Sioux City Seed Co., 14 Col. App. 219, 225, 59 Pac. 879; Leeper v. Schroeder, 24 Col. App. 164, 132 Pac. 701; Anderson v. Schroeder, 24 Col. App. 183,132 Pac. 707; Robson v. Hale, 139 Ga. 753, 78 S. E. 177; Bagley v. Findlay, 82 01. 524; Ames v.