dictum in Mersey Steel Co. v. Naylor, but the difficulty remains. This occurs where the failure is not in the first delivery but in a second or subsequent delivery. As was said by the New Jersey Court, 101 the delivery of the first instalment does not on principle seem to stand on any different footing from the delivery of any subsequent instalment; and yet if we apply the doctrine of Hoare v. Rennie to a second instalment we are running counter to the well-known principle that the right of rescission must not be exercised unless we can restore the parties to their original position.

Most of the cases cited which allow a breach upon a failure to deliver the first instalment can be easily reduced to conformity with the rule already mentioned as in force in New Jersey, that rescission will be allowed only where the default evinces an intention not to carry out the contract. It will be seen that the failure to deliver the first instalment is much more likely to be given this construction than a subsequent default, which would more probably be the result of accident. But it is submitted that any rule of law which compels the vendee, if the default is on a second or subsequent instalment, to return the goods received or their value cannot arise from a true construction of these contracts, but from a desire not to impose a forfeiture on the vendor. Such a rule practically says to the vendee, "The vendor has not carried out his part of the contract, but in the interest of fairness we will say that what he has done practically constitutes a contract between you. Although the goods you have received may be of no use to you, although they are not what you contracted for, still you must pay for them, being content to recoup damages for your vendor's failure," thus making a breach of contract in itself a new contract between the parties. The vendee would lose much of the advantage which might be gained by successive deliveries, because he could never be sure they would ever be completed. If he wanted a less quantity he could contract for that amount in the first place in one delivery, making his own contract and not letting the court make one for him; if, on the other hand, he wanted a larger quantity it would seem that to be safe he must order it all at once to be delivered in one instalment. Contracts are made to be kept and not broken, and the courts should be only too willing to adopt a rule which will be an incentive to keep them. Any other rule will permit the vendor to keep a contract if favorable to him or break it if it prove disadvantageous. Such a "con101 31 Atl. Rep. 401.

struction" of these contracts as the above is not logical, and it can have no force in a State like New York, where the doctrine of entirety has a firm hold. In this State at least the case of Catlin v. Tobias seems to be authority for the view that failure to deliver a second instalment would work a forfeiture equally with a default in the first delivery, and this view is taken by a case in a lower court. 102

In view of the conflicting decisions and the unfairness of either rule in given cases, a rule is with diffidence suggested for which the writer can cite no authority. Where the contract is for the sale of goods of the like of which there is no dearth on the market upon default in a delivery the vendee should be allowed to make a new contract with another vendor for delivery of the remainder. He should pay the first vendor for what he had delivered, and should be allowed to counterclaim damages. for failure to deliver the remainder the measure of which would be the difference in the price of the goods under the new agreement and the old. In cases of this sort such a rule can do no harm. But where the contract is for the delivery of rare and valuable articles, or goods of a particular manufacture or brand, the forfeiture should be enforced, on the principle that "where there has been no beneficial service there shall be no pay.'' 103 It may very well be that the vendee would have but little use for a lesser quantity of such articles as these and he perhaps could not obtain the remainder of a quality to suit him elsewhere. Certainly, if the rule of Harmony v. Bingham 104 is good law, that a vendor is not excused by act of God, he should not be excused under an entire contract where the failure to deliver was due to his own fault.

Where the vendee sues for failure to deliver the vendor may show in reduction of damages that the vendee could have obtained the same goods from others at the same price. 105 This would seem to be in accordance with the first part of the above rule. Or he may show unreasonable delay in exercising the right to rescind. 106 Or he may show a waiver, as the acceptance of a smaller amount, 107 but a waiver of one delivery does not give the buyer the right to carry this waiver over "to the next

102 Levene v. Rabbitte, 2 N. Y. Supp. 389.

103 Farnsworth v. Garrard, 1 Camp. 38.

104 I Duer. 209.

105 Saxe v. Penokee Lumber Co., 11 Ap. Div. 291.

106 Morgan v. McKee, 77 Pa. 228; Byers v. Chapin, 28 Ohio 300.

107 Avery v. Wilson, 81 N. Y. 341; Silberman v. Fretz, 12 Ap. Div. 328.

together with the Or he may show Parol evidence

instalment and demand the amount then due deficiency of the preceding instalment." 108 that the vendee has prevented performance, 109 may be admitted to show that a written contract of sale has been enlarged and more deliveries provided for. 110 The failure to deliver does not work a forfeiture unless the buyer choose to regard it as terminated, 111 but if he choose to rescind he must do so in toto,112 and unequivocally. 113 When the contract has been rescinded, in those States where the vendor is allowed to recover for what he has already delivered his remedy would be on a quantum meruit.114 If the subject of the sale were animals and, without the knowledge of either party, they were dead at the time of contract, or if merchandise were destroyed by fire under similar circumstances, the sale would be thereby avoided; 115 though if part only were destroyed the buyer would have his option to take the remainder with an abatement of the price. Where nothing was agreed upon as to the time of delivery of the various instalments the question would be one for the court, 117 whether the delivery was made within a reasonable time. 118 the goods are to be delivered, "as fast as they may be produced," they should be delivered as fast as the operation of the vendor's plant will permit. 119

116

If

It is now proposed to inquire briefly as to where the title to the goods remains in sales by instalments. This is largely a matter of public policy in each State, and the question is one of importance for it is a recognized principle of the law of personal property that no man can be divested of it without his consent. 120 And as is said in Shepherd's "Touchstone": 121 "It is a general rule that when a man hath a thing he may condition with it as

108 Johnson v. Allen, 78 Ala. 387.

109 Rouse v. Lewis, 4 Abb. N. Y. App. 121; Young v. Hunter, 6 N. Y. 203; Holmes v. Holmes, 9 N. Y. 525.

110 Ham v. Cerniglia, 73 Miss. 290.

111 O'Neill v. James, 43 N. Y. 84.

112 Raymond v. Barnard, 12 Johnson 274; Hogan v. Weyer, 5 Hill 390; Moyer v. Shoemaker, 5 Barb. 322.

113 Hunt v. Siger, 1 Daly 209; Ehrensperger v. Anderson, 3 Exch. 158. 114 Planche v. Colburn, 8 Bing. 14.

115 Wood & Foster's case, I Leon. 42.

116 2 Kent Com. 469.

117 2 Greenl. 249.

118 Sawyer v. Hammott, 15 Me. 40.

119 Stewart v. Marvel, 101 N. Y. 357.

120 20 Wend. 275; 1 Hill 303.

121 Shepherd's Touchstone, 118, 119, 120.

he will. A contract or sale of a chattel personal, as an ox or the like, may be upon condition and the condition doth always attend and wait upon the estate or thing whereunto it is annexed; so that although the same do pass through the hands of an hundred men, yet it is subject to the condition still." This is still substantially the law in Massachusetts and the title to the property remains in the vendor until all the payments are made, and he can follow the property even in the hands of an innocent purchaser. 122 He may retake the goods from his vendee or sub-vendee without notice, 123 or even from an attaching creditor of the vendee. 124 To entitle him to do this the parties must have intended that the title remain in the vendor, 125 and delivery without requiring payment is presumptive evidence of a contrary intention, 126 the burden of proof being on the vendor to show the true intention of the parties. 127 When this intention is evident the vendee gets no title whatever until payments are made, and consequently can given none. 128 The vendor could, therefore, on condition broken, give good title to some new purchaser without actually retaking possession of his property. 129 Nor would a policy of insurance be discharged by such a contract of sale. 130 But before the day mentioned for payment the vendor, it seems, cannot bring trover for the goods. 181 Upon payment the vendee acquires title to the property without further bill of sale, 132 and in Rhode Island it is said that the vendee has such possession that he may sell or mortgage the goods and that upon payment of the last instalment the title of the mortgagee or sub-vendee would defeat an attachment for debt by the original vendor. 133 This same general rule is applied in some other States, 134 but in New Jersey the vendor must not

122 Merrill v. Bank of Norfolk, 19 Pick. 32.

123 126 Mass. 482; 103 Mass, 517; 9 Allen 171.

124 3 Cush. 257.

125 Denney v. Williams, 5 Allen 3.

126 1 Seld. 45; 6 Pick. 266.

127 Riddle v. Varnum, 20 Pick. 283.

128 Cogill v. Hartford & N. H. R. R., 3 Gray 545; Deshon v. Bigelow, 8 Gray 159; Barrett v. Pritchard, 2 Pick. 512; Reed v. Upton, 10 Pick. 522.

129 Hubbard v. Bliss, 12 Allen, 590.

130 Boston & Salem Ice Co. v. Royal Ins. Co., 12 Allen 381.

131 Newhall v. Kingsbury, 131 Mass. 445.

132 Currier v. Knapp, 117 Mass. 324; Chase v. Ingalls, 122 Mass. 381.

133 Carpenter v. Scott, 13 R. I. 477.

131 Sanders v. Keber & Miller, 28 Ohio St. 630; Cole v. Berry, 42 N. J. Law 308; Tibbetts v. Towle, 12 Me. 341; 1 Cal. 455; I Wis. 141; 16 Mich. 158; 38 Tex. 234; Bradshaw v. Warner, 24 Ind. 58.

give the vendee any indicia of ownership beyond mere possession or be guilty of conduct which the law would consider fraudulent, 135 This seems to be the law in England, 186 and doubtless the latter part of the rule would hold good everywhere. It is on the ground of constructive fraud that other jurisdictions have refused to allow the title to remain in the seller as against creditors or bona fide purchasers from the vendee, 137 and Pennsylvania stands very strongly by this rule. In Illinois they admit that mere possession of goods will not defeat title in the true owner, 188 and that the presumption of title arising from possession of personal property may be overcome, 139 but they refuse to apply this principle to conditional sales and it is well settled that as against creditors or bona fide purchasers reservation of title in the original vendor is invalid, 140 and with this view other States agree. 141 In New York a rather untenable and useless

distinction is taken between conditional sales and conditional de

liveries. 142 In the early case of Wait v. Green, 143 it was thought that it would not be public policy to allow the vendor to reserve title against an innocent purchaser. This case was supported by a large number of early decisions. 144 The case was "distinguished" by Ballard v. Burgett, 145 and was for all practical purposes overruled, and as this case has been subsequently approved, 146 there is no doubt that in this State the original vendor could retain good title. It is submitted that there is no real distinction between conditional sales and conditional deliveries, but that it arose from the not very praiseworthy desire of the Court of Appeals not to overrule Wait v. Green. rate the distinction is one which other courts have been unable

93

135 Marvin Safe Co. v. Norton, 48 N. J. Law 410. 136 Dyer v. Pearson, 10 Eng. C. L. 20.

At any

137 Heryfard v. Davis, 102 U. S. 235; Hervey v. R. I. Locomotive Works, U. S. 664; Copeland v. Bosquet, 4 Wash. Cir. C. R. 594; Rose v. Story, I Pa. St. 190; Haak v. Linderman, 64 Pa. St. 499; Martin v. Mathiot, 14 S. & R. 214.

138 Klein v. Siebold, 89 Ill. 540.

139 Fawcett v. Osborn, 32 Ill. 411.

140 Murch v. Wright, 46 Ill. 487; Jennings v. Gage, 13 Ill. 610; Brundage v. Camp, 21 Ill. 330; McCormick v. Hadden, 37 Ill. 370.

141 Vaughn v. Ricketts, 1874 Ky. Ct. of Appeals; Gerrish v. Clark, 64 N.

H. 492.

142 Comer v. Cunningham, 77 N. Y. 391; Dows v. Kidder, 84 N. Y. 121. 143 36 N Y.

144 Smith v. Lyons, 5 N. Y. 41; 25 Barb. 474.

145 40 N. Y.

140 Austin v. Dye, 46 N. Y.