§ 1085. If, after the goods have been delivered, and the time of payment has arrived, the vendee refuse or neglect to pay for them, the vendor may have an action for goods sold and delivered, and may recover either the price agreed upon, or the reasonable worth of the article sold, if no price be agreed upon.1 But if the goods delivered do not correspond to the agreement, the vendor can only recover the actual worth of the article, although a price be agreed upon, or although they be retained by the vendee.2

§ 1086. Either vendor or vendee is entitled to rescind a contract of sale where the other party has been guilty of fraud or false representations,3 or has entirely failed to fulfil his part of the contract; as if the article sold prove to be entirely different in nature from that which was contracted for,1 or if there be a total defect of title,2 or an unreasonable delay in the performance of the contract.3 But mere inadequacy of price,4 or a failure of payment where credit has been given,5 or, ordinarily, a breach of warranty,6 would not entitle the other to rescind. And it is held that a mere breach of the contract by the plaintiff will not prevent him from suing the defendant for a subsequent breach; the first breach not justifying the defendant in all cases in annulling the contract.7 Where either party would rescind a contract, he must, as a general rule, return or offer to return to the other the subject-matter of sale, and must, in as far as he is able, restore him to the position in which he was before he made the contract.1 An offer to return is not, however, necessary where the goods are utterly worthless.2

1 Hoadly v. M'Laine, 10 Bing. 482; 8. c. 4 M. & S. 340; Bluett v. Osborne, 1 Stark. 384; Clunnes v. Pezzey, 1 Camp. 8; Basten v. Butter, 7 East, 483. No action lies for the price of goods sold if any thing is to be done by the vendor to identify the thing before it is in a fit state for delivery. The remedy, if any, is by an action for non-acceptance. Boswell v. Kilborn, 15 Moore, P. C. 309 (1863); Gilmour v. Supple, 11 Moore, P. C. 551 (1858). And the difference between the agreed price of an article, and its market value at the time of delivery, is the actual damage sustained by a vendor upon a refusal by the vendee to accept the property sold, and the vendor may ascertain or liquidate this amount by a resale, taking all proper measures to secure as fair and favorable a sale as possible. Pollen v. LeRoy, 30 N. Y. 549 (1863). And the converse of the rule (in an action by the vendee) is equally true. Bush v. Holmes, 53 Me. 417 (1866).

2 Street v. Blay, 2 B. & Ad. 456.

3 Covell v. Hitchcock, 23 Wend. 611; Hoffman v. Noble, 6 Met. 68; Holbrook v. Burt, 22 Pick. 546; Harrington v. Wells, 12 Vt. 505; Thayer v. Turner, 8 Met. 552; Thurston v. Blanchard, 22 Pick. 18; ante, § 509 Perley v. Balch, 23 Pick. 283.

1 Stinson v. Walker, 21 Me. 211; Thornton v. Kempster, 5 Taunt. 786; Farrer v. Nightingal, 2 Esp. 610; ante, §1074, 1079. A sale of a given number of bales of cotton is not complied with by a tender of a larger number of bales of different qualities, out of which the buyer is requested to select such as answer to the contract. Rylands v. Kreitman, 19 C. B. (n. s.) 349. So if a person orders "a small cargo of lathwood, about sixty cubic fathoms," and the party to whom the order is sent sends eighty-three fathoms by a vessel, and selects therefrom and sets apart sixty fathoms, and tenders the same to the person giving the order, this is not a compliance with the order, for cargo means a whole cargo, and not a parcel of a cargo. Kreuger v. Blanck, Law R. 5 Ex. 179 (1870).

2 See post, § S50, § 976; 2 Kent, Comm. lect. 39, p. 470, 471, 475, and cases cited; Roffey v. Shallcross, 4 Madd. 227.

3 Benson v. Lamb, 9 Beav. 502.

4 Harrington v. Wells, 12 Vt. 505; ante, § 188, 629.

5 Martindale v. Smith, 1 Q. B. 395; post, § 1091.

6 Voorhees v. Earl, 2 Hill, 288; Thornton v. Wynn, 12 Wheat. 192; Scranton v. Mechanics' Trading Co., 37 Conn. 130 (1870). But see Bryant v. Isburgh, 13 Gray, 607. See also post, § 849. If a horse is warranted "sound for one month," complaint must be made within one month of the sale. Chapman v. Gwyther, Law R. 1 Q. B. 463. And see Bywater v. Richardson, 1 Ad. & El. 508; Mesnard v. Ald-ridge, 3 Esp. 271; Buchanan v. Parnshaw, 2 T. R. 745. If there is a contract for the sale of specific wools, and they are guaranteed as about similar to samples, this is not a condition, but only a warranty, and the purchaser cannot reject the wool on account of its inferiority. Heyworth v. Hutchinson, Law R. 2 Q. B. 447 (1867).

7 Simpson v. Crippin, Law R. 8 Q. B. 14 (1872). Of Hoare v. Rennie, 5 H. & N. 19, apparently contra, Blackburn, J., said: "If the principle on which that case was decided is that, whenever a plaintiff has broken his contract first, he cannot sue for any subsequent breach by the defendant, the decision would be opposed to the authority of many other cases." See Pordage v. Cole, 1 Wms. Saund. 319 l; Jonassohn v. Young, 4B. & S. 296; Henning v. Punnett, 4 Daly, 543 (1873); Bradford v. Williams, Law R. 7 Ex. 259 (1872).

§ 1087. The vendor may bring an action of assumpsit against the vendee while the contract remains unrescinded, but no longer.3 But if he wishes to bring an action of trover or replevin for the article sold, he must first rescind the contract.4 And the fact of fraud by the other party, although it entitles him to rescind, does not enable him to sustain trover or replevin, until the rescission has actually been made.5

§ 1088. The rule that goods obtained by fraud or false representation may be reclaimed by the vendor, does not proceed on the ground that the property in the goods does not pass by the sale, but that the dishonest purchaser shall not hold it against the deceived vendor. It is, therefore, at the option of the vendor either to affirm or to rescind the sale. But, if he elect to rescind, he must do so within reasonable time;6 and if he do any thing to affirm the sale after a full knowledge of the facts, and especially if he suffer a considerable time to elapse, or if others be induced by his dila-toriness to act, bis right to disaffirm the sale and reclaim the goods will be gone.1