See RESCISSION.
Rights of the seller. If an unpaid seller retains both title and possession of the goods, there can be no question as to his legal capac ity to deal effectively with them. It is fun damental that unless the buyer and seller make a contrary agreement, the seller is en titled to the price at the same time that he transfers possession of the goods. According ly the seller always has a lien on the goods which he sells, until payment or tender of the price, unless the terms of the bargain indi cate a contrary agreement. The various terms which indicate a contrary agreement may all be summed up in the single expres sion of sale on credit. But even where the parties agree upon a sale on credit, the sell er's lien may revive, as for instance where the buyer has failed to take possession of the goods until the term of credit has expired and the price becomes due ; Leahy v. Lobdell, 80 Fed. 665, 26 C. C. A. 75. The insolvency of the buyer also revives the lien of the seller, even though the time for payment of the price has not yet arrived ; McElwee v. Lumber Co., 69 Fed. 302, 16 C. C. A. 232 ; Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644; Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. 348 ; Wanamaker v. Yerkes, 70 Pa. 443. When part of the goods are delivered the seller has a lien upon the remainder for whatever portion of the price is unpaid ; Ware River R. R. Co. v. Vibbard, 114 Mass. 447, 458; Wil liams v. Moore, 5 N. H. 235. The lien is lost by delivery to the buyer ; Thompson v. Cono ver, 32 N. J. L. 466 ; or to an agent or bailee for the buyer ; Schmertz & Blakely v. Dwyer, 53 Pa. 335, 338; or where the goods are al ready in the possession of the buyer at the time of the bargain ; 12 A. & E. 632. The seller may waive his lien either by express agreement to that effect or by such conduct as estops him from asserting it. See ESTOP PEL.
As to seller's right to stoppage in transitu, 'see STOPPAGE IN ; BILLS OF LADING. Resale by the seller. The well recognized doctrine in the United States is thus stated in Tuthill v. Skidmore, 124 N. Y. 148, 153, 26 N. E. 348: "When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining posses sion of them, the vendor's right to the prop erty is often called a lien, but it is greater than a lien. In the absence of any express power, the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the extent of his right, but he must pro ceed by foreclosure. When a vendor right fully stops goods in transitu or retains them before transitus has begun, he can, by a sale made on notice to the vendee, vest a pur chaser with a good title: Dnstan v. McAn drew, 44 N. Y. 72. His right is very nearly that Of a pledgee, with power to sell at a private sale in case of default; the vendee having become insolvent and refu pay ment of the notes given for the purchase price of the property which remained in the vendor's possession, the vendor has a right to retain it as security, for the lien was revived as against the vendee and his attaching credi tor; in accord, Putnam v. Glidden. 159 Mass. 47, 34 N. E. 81, 38 Am. St. Rep. 394; Arnold v. Carpenter, 16 R. I. 560. 18 Atl. 174, 5 L. R. A. 357. As to the manner in which the sale should be made, the law is satisfied with a fair sale made in good faith according to established business methods, with no at tempt to take advantage of the vendee ; Ack erman v. Rubens, 167 N. Y. 405, 60 N. E. 750,
53 L. R. A. 867, 82 Am. St. Rep. 728; and in every case it is a question of fact whether the resale complies with this requirement; Id. In some cases it has been held that in order to bind the buyer by n resale, the sell er must have given notice of his intention to make a resale; Ingram v. Wackernagel, &3 Ia. 82, 48 N. W. 698; Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. It p. 722: but by the weight of authority there is no such absolute requirement ; Ullmann v. Kent, 60 III. 271: Redmond v. Smock, 28 Ind. 365; Van Brockien v. Suleallie, 140 N. Y. 70, 35 N. E. 415; Pratt v. Freeman & Sons Mfg. Co., 115 Wis. 648, 92 N. W. 368. A resale of the goods involves an assertion by the seller that his obligation is terminated. The sel er has the right to resell when the buyer is in default, and such default must be of an es sential or material character; his default generally consists in failure to take the goods and pay for them. However. the delay of a day or an hour in a mercantile contract is not alWays fatal, and, generally, if the buy er's default consists merely in delay, the sell er must wait a reasonable time before re selling the goods. What is a reasonable time will vary accordingly to the nature of the goods and the circumstances of the case. If goods are perishable, or of rapidly fluc tuating value, the reasonable time will be very short. The seller may charge, in his account against the buyer, all reasonable expenses occurred in making the resale; Hill v. Mc Kay, 94 Cal. 5, 29 Pac. '406. He cannot, how ever, make a charge for his own services in connection with the resale : Penn v. Smith, 93 Ala. 476, 9 South. 609; Gehl v. Milwaukee Produce Co., 105 Wis. 573, 81 N. W. 666. If the resale is for a higher price than that for which the original buyer was bound, the seller has the right to keep the profit ; War ren v. Buckminster, 24 N.• H. 336. This is expressly so provided in the Sales Act. Receicsion by the seller. "The seller, up on the buyer's default, whether the latter is insolvent or not, and whether his conduct is such as to show a settled determination to repudiate the contract or not, may, al.hough title has passed to the buyer, elect to keep the property as his own and recover damages for the buyer's breach; Mechem, Sales, 1681. By the Sales Act : 1. An unpaid sell er having a right of lien or having stopped the goods in .transitu, may rescind the trans fer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make de fault, or where the buyer has been in de fault in making payments for an unreasona ble time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of contract or sale. The transfer of title shall not be held to have been rescind ed by an unpaid seller until he has manifest ed by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should ba com municated to the buyer, but the giving or failure to give notice to the buyer of the in tention to rescind shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was as serted.