When goods are subject to a legal lien, as they are when an unpaid seller is in posses sion of them, a subsequent buyer can acquire only such right as the original buyer, from whom be bought them, had; Keeler v. Good win, 111 Mass. 490; Robinson v. Morgan, 65 Vt. 37. 25 Atl. 899.
Generally there can be no doubt that an unpaid seller may choose any of the remedies against the goods which the law allows; namely, a right to hold them, to resell them on account of the buyer, or to resume the Property in the goods.
Remedies of the miler on the contract. Where the property in the goods has passed and the buyer wrongfully neglects or refuses to pay for them, the seller may recover the price; Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. 117; Doremus v. Howard, 23 N. J. I,. 390. The general rule of the English law and of many of the states denies an action for the price unless the property has passed; Moody v. Brown, 34 Me. 107. 56 Am. Dec. 640; McCormick Harvesting Machine Co. v. Balfany, 78 Minn. 370, 81 N. W. 10, 79 Am. St. Rep. 393; Puritan Coke Co. v. Clark, 201 Pa. 556, 54 Atl. 350; American Hide & Leath er Co. v. Chalkley, 101 Va. 458. 463, 44 S. E. 705. If the reason why the property in the goods has not passed to the buyer is because the buyer wrongfully refused to take title when offered to him, the seller, according to the weight of authority, may recover the full purchase price; Kinkead v. Lynch, 132 Fed. 692; Ames v. Moir, 130 III. 582, 22 N. E. 535; Rastetter v. Reynolds, 160 Ind. 133, 66 N. NI 612; Gordon v. Norris, 49 N. H. 376; Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415 ; Haynes v. Brown, 18 Okl. 389. 89 Pac. 1124. Some jurisdictions restrict the appli cation of this doctrine to cases where the goods contracted for are of a peculiar kind, not readily salable on the market and as to which, therefore, a market price cannot read ily be fixed ; River Spinning Co. v. Atlantic Mills, 155 Fed. 466; Black River Lbr. Co. v. Warner, 93 Mo. 374, 6 S. W. 210; Ballen tine v. Robinson, 46 Pa. 177. Where the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an ac tion for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract; Krebs Hop Co. v. Livesley, 51 Or. 527, 92 Pac. 1084; but it is a defense to such an action that the seller at any time before judgment has man ifested an inability to perform the contract or sale on his part or an intention not to per form it, such as where he becomes insolvent; Lennox v. Murphy, 171 Mass. 370, 373, 50 N.
E. 644 ; Pardee v. Kanady, 100 N. Y. 121, 2 N. E. 885; Lancaster Bank v. Buyer, 114 Pa. 216, 6 Atl. 141; or makes a voluntary transfer to a third person of the property ; Meyers v. Markham, 90 Minn. 230, 96 N. W. 335, 787; Brodhead v. Reinbold, 200 Pa. 618, 50 Atl. 229, 86 Am. St. Rep. 735 ; or a repudi ation; Ripley v. McClure, 4 Ex. 345.
Conditional sales present the only class of cases where it is at all usual for the buyer to agree to pay the price before be acquires title to the property. The buyer, relying on his possession of the goods as sufficient to secure him for such portion of the price as he may pay before the property passes to him, is content to pay part of the price in advance. It is generally provided in such contracts that on default of the buyer, the seller may reclaim possession of the goods, and even in the absence of such a provision, it has been held to be implied; Ryan v. Way son, 108 Mich. 519, 66 N. W. 370. If the sell er exercises his right to reclaim the goods, it is generally held an election to rescind the contract, and thereafter an action for the price or any unsatisfied balance of it, is not allowed; Aultman & Co. v. Olson, 43 Minn. 409, 45 N. W. 852; Kelley Springfield Road Roller Co. v. Schlimme, 220 Pa. 413, 69 Atl. 867, 123 Am. St. Rep. 707. A seller should be allowed all the means that he has con tracted for in order to get the price of the goods, and most courts do not compel the sell er to account for any payment which he has received if he reclaims the goods because of the buyer's default; Fleck v. Warner, 25 492 ; Lorain Steel Co. v. St. Ry. Co., 187 Mass. 500, 73 N. E. 646; Morgan v. Kid der, 55 VC 367. However, some cases hold that if the contract does not provide for the forfeiture of such payments as have been made before default, they may be recovered by the buyer, with only such deduclon as is fair compensation for the use of the goods; Hill v. Townsend, 69 Ala. 286; Pierce v. Staub, 78 Conn. 459, 62 Atl. 760, 3 L. R. A. (N. S.) 785, 112 Am. St. Rep. 163 ; Latham v. Sumner, 89 Ill. 233, 31 Am. Rep. 79. And a few cases have also held that in an action brought to reclaim possession, the seller must either tender the portion of the price which has been paid, subject to proper reduction for temporary use, or that a money judg ment will be rendered in which an equitable reduction is made from the value of the goods; Hays v. Jordan & Co., 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373; National Cash Reg ister Co. v. Cervone, 76 Ohio St. 12, SO N. E. 1033.