4(2)

(v) P. 185, 6th ed. (w) P. 476, 5th ed. {x) 5 Ch. D. 388.

(y) In Benjamin on Sale, 2nd ed. 1873, pp. 649, 655, it is laid down that the cases decide expressly that the vendor has no right to re-sell, for they determine that he is responsible for nominal damages for non-delivery of the goods where there is no difference between the contract and the market price thereof; and in support of this proposition Valpy v. Oakeley, 16 Q. B. 941, and Griffiths v. Perry, 1 E. & E. 680, are cited. But see the view now maintained by the editors of Benjamin on Sale, 934 sq., 5th ed. In Ex parte Stapleton, Re Nathan, 1879, 10 Ch. D. 586, it was decided that an unpaid vendor of goods, who had re-sold (after notice of his intention to do so) upon the purchaser's bankruptcy, was entitled to prove for a deficiency in price on the re-sale. But it appears that he would have had this right even though the re-sale were wrongful; Stephens v. Wilkinson, 2 B. & Ad. 320; Page v. Cowasjee, L. R. 1 P. C. 127; Benj. Sale, 654, 2nd ed. Mr. M. D. Chalmers, however, in his Digest of the Law of Sale of Goods (1890), sect. 50 (3), evolved out of certain obiter dicta in Paqe v. Cowasjee, L. R. 1 P. C. 145; Lord v. Price, L. R. 9 Ex. 55, and Ex parte Stapleton, ubi sup., the rule afterwards adopted in the Sale of Goods Act, 1893, stat. 56 & 57 Vict. c. 71, s. 48 (3), viz., "Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract."

(2) See preceding note; and Johnson v. Stear, 15 C. B. N. S. 330; Pigot v. Cubley, ib. 701; Blackburn, J., Donald v. Suckling, L. R. 1 Q. B. 585. 016; Blackburn on Sale, 325, cited Benj. Sale, 644, 2nd ed.

(a) See Jessel, M.R., Lysaght v. Edwards, 2 Ch. D. 499, 506, 507; above, p. 49.

(b) Bowles v. Rogers, 6 Ves.

95, n.; Seton on Judgments, 2290 - 2294, 6th ed.; see below, Chap. XL Sec. 1, XVIII. Sec. 2, XIX.

Sec.1.

(c) Vol. i., pp. 568-70, 4th ed.

(d) See Benj. Sale, 648, 654, 2nd ed.; Maclean v. Dunn, 4 Bing. 722; Stephens v. Wilkinson, 2 B. & Ad. 320; Page v. Cowasjee, L. R. 1 P. C. 127.

(e) Ex parte Seaforth, 19 Ves.

If the vendor rescind the contract for the purchaser's breach of one of the main duties under the agreement (k), he is restored to his former beneficial ownership of the land, and can then as owner re-sell or otherwise dispose of it as he pleases (l). If he so re-sell for a higher price, such purchase-money is all his own; and if the re-sale produce less than the former contract-price, he must bear the loss himself (m). The vendor can also sell or otherwise dispose of the land as owner after an action for judgment has been recovered by or against him in an damages. action for damages for breach of one of the main duties arising under the contract in).

Re-sale as owner after a rescission for the purchaser's default or after judgment in 235; Hope v. Booth, 1 B. & Ad. 498; Gray v. Gray, 1 Beav. 199; Harding v. Harding, 4 My. & Cr. 514.

(f) Greaves v. Ashlin, 3 Camp. 426; Valpy v. Oakeley, 16 Q. B. 941; Griffiths v. Perry, 1 E. & E. 680. The contrary appears to be laid clown in 1 Davidson, Prec. Conv. 570, 4th ed., and 1 Dart, V. & P. 185, 6th ed.; 179, 180, 7th ed.; hut Ex parte Hunter, 6 Ves. 94, 97, cited as the authority for these statements, was a case of re-sale under an express power of re-sale, whereby the original contract is rescinded; Lamond v. Davall, 9 Q. B. 1030; Sug. V. & P. 39. And it appears from 1 Dart, V. & P. 163, 5th ed., that Mr. Dart's statement was made with respect to such a sale. It seems too that Mr. Davidson's statement was really intended to apply only to such a sale.

(g) 1 Davidson, Prec. Conv. 570, 4th ed. Note that Bacon, V.-C, decided nothing in Noble v. Edwardes, 5 Ch. D. 378, 392, as to the vendor's right to recover the expenses of re-sale.

(h) He might, of course, obtain a good title as a bona fide purchaser without notice of the original sale.

(i) Stat. 56 & 57 Vict. c. 71, s. 48 (2).

(k) Above, p. 34.

(l) Howe v. Smith, 27 Ch. D. 89, 104, 105.

(m) See below, Chap. XIX. Sec.1.

(n) See above, p. 36; below, Chap. XIX. Sec. 2.