11. Reselling the goods.—Suppose the seller actually has possession of the goods now, either be cause he has exercised his primary lien, or because he has recovered them thru his right of stoppage. What may he do with them? He may resell them. If they are perishable, he does this immediately; if they are not perishable, he waits a reasonable time for the buyer to pay the price. If the goods are not perish able, the seller will act wisely if he notifies the buyer of his intention to resell the goods. This notice is not absolutely indispensable, but it establishes the seller's good faith in the transaction. If the seller makes an extra profit in the resale, he is entitled to retain it, but if he suffers any loss, he may hold the original buyer in damages.
12. Recovery on the ground of fraud.—If neither of the two remedies just described is available, one more is left. The seller may be able to have the en tire transaction set aside as fraudulent. It must be remembered, however, that lawyers realize that it is always difficult to prove fraud. The mere fact that the buyer is insolvent is not proof that he has practised fraud. But if a buyer has relied on a fraudulent financial statement, the buyer may be able to prove the case against him. Then, too, it must be remem bered that even tho the buyer is guilty of fraud, he actually obtains title, and that this may be transferred to an innocent purchaser. In discriminating between the latter and the original seller, the courts favor the innocent purchaser, since he could not be justly blamed for his part in the fraudulent transac tion.
13. Steps in litigation.—Let us suppose that the creditor has no opportunity to recover the goods, or that if he has, he does not think it wise to make use of the opportunity. What procedure is necessary to ob tain the redress provided by law? Since we are in terested here only in the purely legal phases of collec tion, we shall say nothing about the work of the at torney as a collector. That phase of the subject has been treated elsewhere.
Generally the law does not give the creditor full recognition as creditor till his status has been estab lished in a court of law. In order to get the debtor into court, it is necessary to serve him with a summons. Then, that the time of the court may not be wasted, the parties state, in documents known as pleadings, what they expect to prove. At the proper time a trial is held; the evidence is submitted to sustain the allega tions made in the pleadings; and a judgment is issued , either for the plaintiff or for the defendant. If the
latter wins the case, the complaint is dismissed, and a money judgment is entered against the plaintiff for costs. Frequently the debtor has no defense, and merely defaults. If this is the outcome, a judgment is entered against him without a trial of the case. It must be understood that this summary is only the barest outline of judicial in an ordinary action to collect a debt. The details are technical in a high degree, and are therefore usually left entirely in the lawyer's hands.
14. Importance of evidence.—While the court will consider any statement that savors of the truth, it places strong emphasis upon the importance of evi dence. A person may be absolutely certain that he has a meritorious case, yet if he cannot bring forward evidence, his suit will be dismissed. The motto of Cromwell and his soldiers, "Trust in God, and keep your powder dry," expressed no less faith because of its implication that man must do his part. And sim ilarly, we show no lack of confidence in those who ad minister justice, tho we say, "Trust in the courts, and be sure to give them a good case." Lawyers must depend on their clients for the facts. While some concerns are very successful in their col lection cases, other houses are not nearly so successful. Cases are lost because delivery slips have been mislaid, or because signatures or order forms cannot be proven. While on the one hand, it is unwise to arouse a cus tomer's suspicions by checking his account too criti cally, certainly on the other hand, it is merely ordinary business prudence to remember that at any time a debt may have to be established in a law court by sufficient competent evidence, and to conduct the account ac cordingly.
15. Enforcing the judgment.—A judgment is no better than the judgment debtor. One cannot squeeze water out of a stone, nor can one get money out of a pauper. There are some debtors, however, who can pay their judgment, but will not. To gain access to the property of unwilling debtors is not the least im portant part of the collection process. After the judgment is docketed, an execution is delivered to the sheriff or to some other executive officer of the county or city, who is thereupon directed to make a levy on the goods of the debtor. If the levy is made, in due course the goods are sold at public auction and the judgment is satisfied out of the proceeds. If no goods are found, the execution is "returned unsatis fied." The completion of this process paves the way for the other remedies provided by law.