1 Woodward v. Thacher, 21 Vt. 580; Buffington v. Quantin, 17 Penn. St. 310.
2 Street v. Blay, 2 B. & Ad. 456; Story on Agency. If a vendee' on credit leave the goods in the possession of the vendor, who sells them wrongfully, the vendee may recover in trover against the vendor the loss sustained by him by not having the goods delivered at the agreed price, but not the value of the goods, not having paid for them. Chinery v. Viall, 5 H. & N. 288.
3 Greene v. Bateman, 2 Wood. & Min. 359.
4 Crooks v. Moore, 1 Sandf. 297. 5 Ibid.
6 Clark v. Baker, 5 Met. 452.
§ 1096. Another species of sale is a conditional sale, where there is a contract of "sale or return," as it is called, wherein the goods pass to the purchaser with an option in him to return them within a reasonable time; and if he fails to exercise that option in a reasonable time, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered.4
§ 1097. But where the sale is absolute, and there is no subsequent agreement or consent of the vendor to take back the article, the vendee cannot bring the action for money had and received, but is put to his action on the agreement or warranty, unless it be proved that the vendor knew of the unsoundness or inferiority of the article, and that the vendee offered to return it within reasonable time.1 Before an action for a breach of warranty, therefore, the vendee need not return or offer to return the goods, although the vendor had engaged that the property might be returned, if it did not fulfil the contract;2 or give notice that they do not comply with the warranty;3 although, if such notice were not given, it might afford a strong presumption that the goods had not the defect complained of at the time of the sale.4 Where no notice is given, the measure of damages will be the difference between the price given and the actual value at the time of the sale. But where notice is given, storage may be charged, and expenses of keeping after notice,5 for such a period of time as would reasonably be required to sell to advantage.6 Moreover, if the property in a specific chattel has passed to the vendee, and the price has been paid, and the article accepted and received into possession, he has no right to return it upon breach of warranty, and revest the property in the vendor, without his consent, but must sue upon the warranty,7 unless
1 If a contract has been made between A. & B. for an exchange of horses, and A. has given his note for the difference agreed upon, and afterwards, being dissatisfied with the bargain, has returned to B. the horse which he received, taking another on trial until B. could " procure him a good one," which B. agrees but fails to do; the original contract is not rescinded, and A. is not entitled to recover of B. the value of the horse originally delivered to him, but is liable to pay to B. the amount of his note. O'Donnell v. Allen, 6 Allen, 106 (1863).
2 Towers v. Barrett, 1 T. R. 136; Thornton v. Wynn, 12 Wheat. 192; Coolidge v. Brigham, 1 Met. 550; Clark v. Baker, 5 Met. 452.
3 Pomeroy v. Shaw, 2 Daly, 267; Hargous 0. Stone, 5 N. Y. 73.
4 Moss v. Sweet, 16 Q. B. 493; 3 Eng. Law & Eq. 311; Bailey v. Gouldsmith, Peake, 56; Beverley v. Lincoln Gas Light Co., 6 Ad. & El. 829. A contract of sale between a vendor in one State and a purchaser in another State, in which it is stipulated that, after the goods are delivered in the latter State, the purchaser need not have them or pay for them unless they suit him, is not complete until after the delivery is made, and the purchaser has an opportunity to make his election. Wilson 0. Stratton, 47 Me. 120 (1860).
1 Thornton v. Wynn, 12 Wheat. 192; Towers v. Barrett, 1 T. R. 136; Voorhees v. Earl, 2 Hill, 288; Ease v. John, 10 Watts, 107; West v. Cutting, 19 Vt. 536. But as to the rule in Massachusetts, see Bryant v. Ishurgh, 13 Gray, 607.
2 Douglass Axe Co. v. Gardner, 10 Cush. 88.
3 Dorr v. Fisher, 1 Cush. 274; Waring v. Mason, 18 Wend. 425; Thompson v. Botts, 8 Mo. 710; Carter v. Stennet, 10 B. Mon. 250. In a late case in New York, it was held that on an executed present sale of an article, with warranty as to quality, it is neither necessary nor allowable to rescind the sale and return, or offer to return the property sold, on account of a breach of the warranty. And the buyer's omission to do so in no way impaired his right of action for damages for such breach. It is otherwise where the sale is executory of goods to be of a particular quality. Rust v. Eckler, 41 N. Y. 488 (1869).
4 Fielder v. Starkin, 1 H. Bl. 17; Poulton v. Lattimore, 9 B. & C. 259; 4 Man. & Ry. 208; Rellogg v. Denslow, 14 Conn. 411.
5 Caswell v. Coare, 1 Taunt. 566; 2 Camp. 82; Germaine v. Burton, 3 Stark. 32; Chesterman v. Lamb, 4 Nev. & Man. 195; 2 Ad. & El. 129; Armstrong v. Percy, 5 Wend. 539; Egleston v. Macauley, 1 McCord, 379; Buchanan v. Parnshaw, 2 T. R. 715.
6 Ellis v. Chinnock, 7 C. & P. 169; McKenzie v. Hancock, R. & M. 436.
7 Many courts hold that a vendee of personal property warranted need not sue upon the warranty, but may reduce the vendor's damages in a suit brought for the price, by showing how much less the property was worth there had been a condition in the contract authorizing the return, or unless the vendor have actually received back the chattels, or have been guilty of a fraud.1 The goods may, however, of course, be returned at any time by the agreement of both parties.2 But if the goods have not been accepted, and the contract be not completed, the vendee may return them within reasonable time, and may retain them sufficiently long to make a fair trial of them.3
§ 1098. In an executory contract of sale to supply an article for a particular use, if the article be not fit for such use, the buyer is entitled to indemnity for the loss which the non-performance of the contract has occasioned him, and for the immediate and direct gain of which it has deprived him; but it does not entitle him to claim incidental and speculative profits, which possibly might have been made.4 Although by reason of the defect warranted against. Hitchcock v. Hunt, 28 Conn. 343 (1859).