Rights of unpaid seller against the seller The seller of goods is deemed to be an " unpaid seller " within the meaning of the Sale of Goods Act—(a) when the whole of the price has not been paid or tendered ; (b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. In this connection the term " seller " includes any person who is in the position of a seller, as for instance an agent for the seller to whom a bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price. As a general rule, notwith standing that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law—(a) a lien on the goods or right to retain them for the price while he is in possession of them ; (b) in case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them ; (c) a limited right of resale as set out on page 92. Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. In Scotland a seller of goods may attach the same while in his own hands or possession by arrestment or poinding ; and such arrestment or poinding has the same operation and effect in a competition or otherwise as an arrestment or poinding by a third party. Unpaid seller's lien.—The unpaid seller of goods who is in possession of them is entitled, as a rule, to retain possession of them until payment or tender of the price in the following cases, namely :—(a) Where the goods have been sold without any stipulation as to credit ; (b) where the goods have been sold on credit, but the term of credit has expired ; (c) where the buyer has become insolvent. The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodian for the buyer. Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circum stances as to show an agreement to waive the lien or right of retention. The unpaid seller of goods loses his lien or right of detention thereon—(a) when he delivers the goods to a carrier or other bailee or eustodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods; (b) when the buyer or his agent lawfully obtains possession of the goods ; (c) by waiver thereof. The unpaid seller of goods having a lien or right of retention thereon, does not lose his lien or right of detention by reason only that he has obtained judgment or decree for the price of the goods. Stoppage in transita.— As a general rule, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the pos session of the goods has the right of stopping them in transitu ; that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price. Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer or his agent in that behalf takes delivery of them from such carrier or other bailee or custodier. If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer or his agent that he holds,the goods on his behalf and continues in possession of them as bailee or custodier for the buyer or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer. If the goods are rejected by the buyer, and the carrier or other bailee or custodian continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier or as agent to the buyer. Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer or his agent in that behalf, the transit is deemed to be at an end. Where part delivery of the goods has been made to the buyer or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods. The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods arc. Such notice
may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal by the exercise of reasonable diligence may communicate it to his servant or agent in time to prevent a delivery to the buyer. When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such redelivery must he borne by the seller.
Resale by buyer or seller.—Generally speaking, the unpaid seller's right of lien or detention or stoppage in transitu is not affected by any sale or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. But where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu is defeated ; and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. Subject to the provisions in this paragraph a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu. Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu resells the goods, the buyer acquires a good title thereto as against the original buyer. And where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. Where the seller expressly reserves a right of resale in case the buyer should make default, and on the buyer making default resells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages.
Actions for breach of the of the under a contract of 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, the seller may maintain an action against hini for the price of the goods. Where under a contract of sale the price is payable on a day certain, irrespective of delivery, 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. This does not prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. Should the buyer wrongfully neglect or refuse to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. The measure of damages is the estimated loss directly, and naturally resulting in the ordinary course of events from the buyer's breach of contract. Accordingly, where there is an available market for the goods in question, the pleasure of damages is prima fizcie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or if no time was fixed for acceptance, then at the time of the refusal to accept. Remedies of the buyer.—lf the seller wrongfully neglects or refuses to deliver the goods to the buy.er, the latter may maintain an action against the seller for non delivery. The measure of damages is the estimated loss directly, and naturally resulting in the ordinary course of events from the seller's breach of contract. And so, where there is an available market for the goods in question, the measure of damages is prima facie ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or if no time was fixed, then at the time of the refusal to deliver. In any action for breach of contract to deliver specific or ascertained goods the Court may, if it thinks fit, on the application of the plaintiff', by its judgment or decree, direct that the con tract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the Court may seem just, and the application by the plaintiff may be made at any time before judgment or decree. These provisions with reference to remedies of the buyer are sup plementary to and not in derogation of the right of specific ,implement in Scotland.