This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In some jurisdictions one who has entered into an executory contract for the sale of personalty may continue performance in spite of the renunciation of the contract by the purchaser, and he may recover the purchase price in full.1
12 Marsh v. Blackmail, 60 Barb. (N. Y.) 329.
13 Goodpaeter v. Porter, 11 la. 161; Curran v. Rogers, 35 Mich. 221; Garrard v. Dollar, 49 N. Car. 175, 67 Am. Dec. 271.
14 Garrard v. Dollar, 49 N. Gar. 175, 67 Am. Dec. 271.
1 United States. Bookwalter v. Clark, 10 Fed. 793; Kinkead v. Lynch, 132 Fed. 692.
Colorado. Colorado Springs Live Stock Co. v. Godding, 20 Celo. 249, 38 Pac. 58; Bond v. Bourk, 64 Colo. 61, 43 L. R. A. (N.S.) 97, 129 Pac
223. Illinois. Osgood v. Skinner, 211
III. 229, 71 N. E 869.
Indiana. Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140 (obiter); Gaar v. Fleshman, 38 Ind. App. 490, 77 N. E. 744, 78 N. E. 348.
Iowa. McCormick Harvesting Machine Co. v. Markert, 107 la. 340, 78 N. W. 33.
Massachusetts. Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. 117.
Michigan. Meagher v. Cowing, 149 Mich. 416, 112 N. W. 1074.
Missouri. Black River Lumber Co. v. Warner, 93 Mo. 374, 6 8. W. 210; Crown Vinegar & Spice Co. v. Wehrs, 59 Mo. App. 493; St. Louis Range Co. v. Kline - Drummond Mercantile Co., 120 Mo. App. 438, 96 S. W. 1040 (obiter).
This is, in effect, granting a specific performance at law; and frequently without any of the checks or safeguards drawn around specific performance in equity.2 This rule has been criticized,3 and it has been pointed out that many of the cases which are cited in support of this rule are cases in which the title has passed to the purchaser; so that there are no executory covenants to be performed on the part of the seller. In such cases, therefore, the contract price is the measure of recovery, and not damages for the breach, since the seller has performed in full.
New York. Bement v. Smith, 15 Wend. (N. Y.) 403; Moore v. Potter, 155 N. Y. 481, 63 Am. St Rep 692, 50 N. £. 271 (obiter); Ackerman v. Rubens, 167 N. Y. 405, 82 Am. St. Rep. 728, 53 L. R. A. 867, 60 N. B. 750 (obiter); Schwarzer v. Karsch Brewing Co, 74 App. Div. 383, 77 N. Y. Supp. 719 (semble).
North Carolina. National Cash Register Co. v. Hill, 136 N. Car. 272, 68 L. R. A. 100, 48 S. £. 637.
Ohio. Shawhan v. Van Nest, 25 O. S. 490, 18 Am. Rep. 313; Rhodes v. Mooney, 43 O. S. 421, 4 N. E. 233.
Oregon. Smith v. Wheeler, 7 Or. 49, 33 Am. Rep 698.
Pennsylvania. Balletine v. Robinson, 46 Pa. 177.
2 See ch. LXXXIX.
3 "The classification of the cases, made by the text writers, is, in some instances, inaccurate. The writers seem not to have observed in all instances the distinctions and tests above mentioned In other words, they have frequently classed cases in which the title had passed, or in which there was evidence from which the jury might have found the fact, as cases in which it had not passed In other instances they have failed to observe that the executory contract had become executed so as to pass the title before any renunciation was made by the vendee. Indeed, there are very few cases in which the seller has been allowed to recover the purchase price when the title to the property had not passed to the buyer. The doctrine of election, when the title has not passed, seems to have grown out of an unfortunate and inaccurate interpretation of certain cases made by Mr. Sedgwick in his work on Damages. He having stated the proposition a good many years ago, certain courts cited his work as authority for it, and, later, the editors of that work have cited these cases to sustain it. His text may have been misinterpreted. Thus, Dustan v. McAndrew, 44 N. Y. 72, cites Sedgwick on Damages. Then in the eighth edition of Sedgwick, Dustan v. McAndrew is the first case cited. On examination, Dustan v. McAndrew will be found to have been a fully executed contract. The hops had been delivered at the place of delivery specified in the contract before there was any dissent on the part of the purchaser. It may also have been an executed contract passing the title at its inception. At any rate, it is not a case in which the title had not passed. An older edition of Sedgwick, the fifth, cited Graham v. Jackson, 14 East, 498, Bement v. Smith, 15 Wend. 493, and Thompson v. Alger, 12 Met. 428, to sustain his proposition. In Graham v. Jackson, the case of a sale by a bought-and-sold note, made by a broker in New York, it appeared that the defendant had bought of the plaintiff 300 tons of Campeachy logwood, which the memorandum described as 'shipped at New York * * * to be of real merchantable quality, such as may be determined to be otherwise by impartial judges to be rejected.' Before any objection was made by the purchaser, the logwood arrived in England. Supposing it not to have been an executed contract at its inception, passing the title, it had been executed when the action was brought. It had been delivered at the place stipulated. Upon delivery, it became the property of the purchaser, he having given no notice of intention not to receive it. It is not clear that it was an executory contract. If the broker and the seller agreed at the time upon the specific wood loaded on a ship then at New York, ready to be carried to Liverpool, the seller having nothing more to do with it, then, under all the authorities, it was an executed contract of sale, passing title." Acme Food Co. v. Older, 64 W. Va. 255, 17 L. R. A. (N.S.) 807, 61 S. E. 235.
Many of the courts which recognize this principle do not, however, limit it to cases in which title has passed to the purchaser; but they extend it to cases in which title would have passed if the buyer had not refused to accept it.4 This rule has been applied to a contract to furnish and install a special apparatus, which has been treated as a contract for work and labor to take it without the operation of the Statute of Frauds; and as a contract of sale, to enable the seller to recover the contract price in full.5
In the Uniform Sale of Goods Act the legislature has adopted the rule that the purchase price may be recovered without regard to the transfer of title where the price is made payable on a certain day, or where the goods can not be resold readily for a reasonable price.6
4 Bond v. Bourk, 54 Colo. 51, 43 L. R. A. (N.S.) 97, 129 Pac. 223; Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612.
"While there is not a unanimity of judicial opinion upon the question of acceptance of the goods sold in an ac tion such as this, we think the rule, established by the better reason is that, in an action for goods sold and delivered, the seller is entitled to recover the contract price if he has delivered the property to the purchaser, or done such acts as vested the title in the purchaser, or would have vested the title in him if he had accepted it." Rastetter v. Reynolds, 160 Ind. 133, 66 N. E. 612.
5 Bond v. Bourk, 54 Colo. 51, 43 L. R. A. (N.S.) 97, 129 Pac 223.
6 "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.