1 Hanna v. Mills, 21 Wend. 90. See post, § 1343.

2 Ibid.

3 Hennequin v. Sands, 25 "Wend. 640.

4 Boulter v. Arnott, 3 Tyrw. 267; 1 Cr. & M. 333; Long on Sales, Rand'sed. 476; Langfort v. Tiler, 1 Salk. 113; Maclean v. Dunn, 4 Bing. 722; Boorman v. Nash, 9 B. & C. 145; Gregory v. McDowel, 8 Wend. 435; Dey v. Dox, 9 Ib. 129; Stewart v. Cauty, 8 M. & W. 160. But see Wilmshurst v. Bowker, 3 Scott, N. R. 272; s. c. 7 M. & Gr. 882; Crooks v. Moore, 1 Sandf. 297.

5 Martindale v. Smith, 1 Q. B. 389; Milgate v. Kebble, 3 Scott, N. R. 358; s. c. 3 M. & Gr. 100.

§ 1092. The vendee may maintain an action in trover when the goods are vested in him, if the vendor refuse to deliver them upon tender of the price; and the measure of damages will be the difference between the agreed price, or the value at the time agreed upon for delivery, and their value at the time when and at the place where they were to have been delivered,6 or, perhaps, at the time of the trial.7 If the goods be already paid for, the vendee may recover in damages any additional value which the goods may have acquired at any intermediate time between the time agreed upon for delivery and the trial of the case.8 But if the goods have not but they do not correspond to the contract, and are not accepted, and are returned, the vendee may recover the price paid, in an action for money had and received to his use. But if they cannot be returned without great expense, as if they be received from a distance, they may be sold on account of the vendor, and the vendee may recover the difference between the sum received from the sales and the contract price.1 If the price have not been paid, the vendee is not obliged to pay it.2 So, also, if the vendor refuse to receive the goods again, the vendee may upon notice sell, in which case the vendor could only recover the amount of the proceeds of the sale, after deducting a fair compensation for the services of the vendee; or the vendee may set the articles aside, and give notice that he will not keep them, in which case he would not be liable therefor, except on some special contract duly proved.3 Where a sale is thus made, it is not necessary that it should be made by auction, or in any particular mode, unless such be the usage, but the goods must be sold in good faith and in the mode best calculated to produce their value; and if there be any usage as to the mode of sale, it should be followed.4 In respect to notice in such cases, the rule is that reasonable notice should be given; but what constitutes reasonable notice must depend on the peculiar circumstances of each case.5

1 Crooks v. Moore, 1 Sandf. 297.

2 Springer v. Berry, 47 Me. 330 (1860).

3 Greaves v. Ashlin, 3 Camp. 426.

4 Crooks v. Moore, 1 Sandf. 297. See also post, § 848.

5 Ibid.

6 See Peterson v. Ayre, 13 C. B. 353; 21 Eng. Law & Eq. 382.

7 Greening v. Wilkinson, 1 C. & P. 625; Mertens v. Adcock, 4 Esp. 251; Gainsford v. Carroll, 2 B. & C. 624; Boorman v. Nash, 9 Ib. 145.

8 Clark v. Pinney, 7 Cow. 681; Shepherd v. Hampton, 3 Wheat. 200; West v. Wentworth, 3 Cow. 82; Greening v Wilkinson, 1 C. & P. 625. But in Massachusetts, the value of the goods, at the time when the delivbeen paid for, the measure of damages would be their value at the time and place where they should have been delivered.1 So, also, the vendee may, under special circumstances, recover such damages for unreasonable delay as have actually been sustained.2

§ 1093. Where the contract is an entirety, for a specific quantity of goods, and the vendor delivers only a part, the vendee may refuse to accept it; but if he retain the part delivered, he may be liable upon a quantum meruit for their value.3 Where, however, under a contract of warranty, the vendee retains the goods after giving notice of their defects, the vendor can only recover the actual value of the goods; and the vendee, if he have advanced the full price, may recover the difference between it and the actual value.4 If notice be not given, it will afford a strong presumption that the goods corresponded to the warranty, but such presumption may be rebutted.5 Wherever an article is sold under a warranty as to its quality, or with a representation amounting to a warranty, the burden of proof, in an action to recover the price, is on the vendee to show that it was not equal to the warranty.6 '

§ 1094. When goods have been received and the price paid, ery ought to be made, is considered as the true rule of damages. Kennedy v. Whitwell, 4 Pick. 466; Sargent v. Franklin Ins. Co., 8 Pick. 90.

1 Shepherd v. Hampton, 3 Wheat. 200; Gainsford v. Carroll, 2 B. & C. 624; Boorman v. Nash, 9 Ib. 145; Swift v. Barnes, 16 Pick. 194; Shaw v. Nudd, 8 Pick. 9; Douglass v. McAllister, 3 Cranch, 298; Hopkins v. Lee, 6 Wheat. 109.

2 Brown on Sales, No. 818; Long on Sales, Rand's ed. 478; Marshall v. Campbell, 1 Yeates, 36, 37.

3 Roberts v. Beatty, 2 Penn. 63; Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyne, 3 Bing. 285; 11 Moore, 2; Shipton v. Casson, 5 B. & C. 378; Bragg v. Cole, 6 Moore, 114; Miner v. Bradley, 22 Pick. 457; Star Glass Co. v. Morey, 108 Mass. 570 (1871). The case might be otherwise where the delivery of the whole was of the essence of the contract, and the vendor never intended to deliver more than a part; especially if the buyer, expecting the rest, had disposed of the part received and put himself to inconvenience for want of the remainder.

4 2 Stark. Ev. 1667; Caswell v. Coare, 1 Taunt. 566; Curtis v. Hannay, 3 Esp. 83; Cothers v. Keever, 4 Barr, 168.

5 Fielder v. Starkin, 1 H. Bl. 19; Hopkins v. Appleby, 1 Stark. 477.

6 Dorr v. Fisher, 1 Cush. 274.

§ 1095. In order to support an action for money had and received, the contract must have been previously rescinded in toto,6 which may be done either by an act of the vendee, where, by the terms of the contract, it is in his power to rescind it by such act, or by the unconditional assent of the vendor to the rescinding thereof.1 Where the vendee is at liberty to return the goods bought by the special terms of the contract, his offer to return will be considered as equivalent to an actual return, and sufficient to found the action for money had and received.2 Accepting and using the goods without offering to return them may be a waiver of any objection to them, although the vendee expresses dissatisfaction with them.3