1 Voorhees v. Earl, 2 Hill, 288. See post, § 977; Masson v. Bovet, 1 Denio, 69; Ferguson v. Oliver, 8 S. & M. 332; Christy v. Cummins, 3 McLean, 386; Coolidge v. Brigham, 1 Met. 550; Conner v. Henderson, 15 Mass. 319; Abbott v. Marshall, 48 Me. 44 (1860); Bohall v. Diller, 41 Cal. 532 (1871). And unless the contract be severable, the rescission must be in toto. Purdy v. Bullard, 41 Cal. 444 (1871); Bohall v. Diller, supra. The fact that the article delivered is not in quality what was contracted for will not excuse the vendee from taking the necessary steps to rescind the sale. Cutler v. Gilbreth, 53 Me. 176 (1865).
2 Christy v. Cummins, 3 McLean, 386; Perley v. Balch, 23 Pick. 283; Babcock v. Case, 61 Penn. St. 427; Beetem v. Burkholder, 69 Penn. St. 249 (1871). See Morrow v. Rees, Ib. 368; Duval v. Mowry, 6 R. I. 479 (1860).
3 Allen v. Ford, 19 Pick. 217; Thayer v. Turner, 8 Met. 550.
4 Ibid.; Ferguson v. Carrington, 9 B. & C. 59; Strutt v. Smith, 1 C, M. & R. 312.
5 Thayer v. Turner, 8 Met. 550; Prentiss v. Russ, 16 Me. 30; Stin-son v. Walker, 21 Me. 211; Strutt v. Smith, 1 C, M. & R. 312.
6 Towers v. Barrett, 1 T. R. 136; Hinde v. Whitehouse, 7 East, 571; Brinley v. Tibbets, 7 Me. 70; Barnett v. Stanton, 2 Ala. 187; Johnson v. McLane, 7 Blackf. 501.
§ 1089. Again, "this right of reclaiming can be enforced only whilst the goods are in the hands, first, of the fraudulent purchaser; or, secondly, of some agent, trustee, or other person holding for the use and benefit of the purchaser; or, thirdly, of some one who has taken them of the purchaser, with knowledge of the fraud by which tbey were obtained, or with notice sufficient to put him on reasonable inquiry, including, under this head, a mere volunteer, who has obtained the goods without paying any valuable consideration. It follows that a purchaser for a valuable consideration without notice takes a title from the vendee which is not defeasible, and will therefore hold the goods." 2
§ 1090. But where payment and delivery are to be concurrent acts, if the vendee refuse to pay, according to the terms of the contract, when the offer of the goods is made, the property does not vest in him, and he has no right to retain them, and, therefore, the vendor may bring an action of replevin against him. Thus, where, upon a sale of merchandise for cash to be paid for on delivery, the vendee offered the vendor's servant a note of the vendor's which had become payable, for nearly the amount, and cash for the residue, and upon the vendor's declining to receive such payment, the vendee refused to surrender the goods, it was held that no title passed, and that the vendor could maintain replevin.3 And where goods arc sold to be paid for by a bill or note payable at a future day, and such bill or note is not delivered according to the terms of the sale, the vendor may sue immediately for a breach of the special agreement, and recover as damages the value of the goods, allowing a rebate of interest during the stipulated credit.1 But assumpsit on the common counts will not lie until the credit has expired.2 Yet, where the note is to be given at six months, and the goods are delivered, and no demand is made for two months after the sale, the condition will be deemed to be waived.3
1 Per Ch. Justice Shaw, in Hoffman v. Noble, 6 Met. 74. See, also, cases above cited; Cash v. Giles, 3 C. & P. 407; Milner v. Tucker, 1 C. & P. 15; Clough v. London & Northwestern Railway Co., Law R. 7 Ex. 26, 36 (1871); Head v. Tattersall, Ib. 7; Gray v. Fowler, Law R. 8 Ex. 249 (1873). These last cases are important as showing what acts may or may not constitute an election to retain the goods; post, § 1103. See Kellogg v. Denslow, 14 Conn. 411.
3 Leven v. Smith, 1 Denio, 571; Powell v. Bradlee, 9 Gill & Johns. 220. See, also, Manwell v. Briggs, 17 Vt. 176; Luey v. Bundy, 9 N. H. 298.
§ 1091. If the vendee refuse to take the goods at the time and place agreed upon for delivery, the vendor, if he be ready to deliver them, may recover the price in an action for goods bargained and sold; or, unless the vendee object specially, the vendor may sell the goods and recover the difference between the sum they actually bring and the price agreed upon; or, in the absence of any agreement as to price, he may recover the difference between the price they bring and their worth at the time of the completion of the contract.4 But where a special time of credit has been given, it would seem that the vendor could not, upon the non-compliance of the vendee with the exact terms of the bargain as to payment, undertake to rescind the contract and to sell the goods contrary to the vendee's wishes, but that he is bound to hold them and to sue the vendee on the contract.5 The vendor would not, therefore, be justified in selling the goods, except upon the utter refusal of the vendee to receive them, after tender within reasonable time and under reasonable circumstance; but in such case, after notice, he would be entitled to sell, because the vendee's assent to such a proceeding would be fairly implied in the circumstances. Where the resale of the goods does not indemnify him, he may recover the difference between the contract price and the price obtained on the resale as damages,1 and the reasonable expenses of the second sale,2 and if he be prejudiced by any unreasonable delay on the part of the vendee to take the goods, he may also recover damages therefor.3 In respect to the mode of sale, the usage of trade in similar cases governs; and if the usage be to sell by auction or through the agency of a broker, such course should be adopted.4 Where there is no usage, the seller must dispose of them in good faith, and in the mode best calculated in his opinion to produce their value. In respect to notice, the rule is, that a reasonable notice should be given; and this question will depend on the circumstances of each case. It has been held, in one case, that where the parties lived in the same town, and repeated applications for payment had been made without success, a notice by the seller that he would resell on the ensuing day was sufficient, no objection having been made.5