keep the goods, to notify the seller that he will be held liable for damages.

If a warranty was made fraudulently, the buyer may sue the seller upon the warranty, which is a suit on contract, or he may bring suit for fraud, which is a suit in tort. When there is a breach of warranty of title, the buyer may, upon being sued for the property which he received from the seller, defend such suit, or offer to allow the seller to defend it, and if such suit is lost, the seller will be liable for the selling price of the property and also for the expense incurred in defending the title. When a suit is brought for damages for breach of warranty, or a counterclaim for breach of warranty is set up, the rule of damages is that the buyer is entitled to recover the difference between the value of the goods actually delivered and what the value of the goods would have been, had they complied with the warranty.

Remedies of seller.-A contract of sale of personal property may give rise to various remedies on the part of the seller against the buyer. What remedy should be pursued on the part of the seller will depend largely upon the question of whether the contract of sale is executed or executory. The question of the passing of the title, already discussed, is of importance here, as, until the title passes, the contract is executory, and if there is a breach of it, the seller is entitled to keep the goods. Before the seller can sue the purchaser on a contract of sale, it is necessary for him to perform all the terms of the contract on his part to be performed. Thus, it is necessary for the seller to show that he delivered the goods to the buyer, or offered to deliver, and that the buyer would not receive them, or that the buyer repudiated the contract before delivery, or offer to deliver. When the buyer repudiates the entire contract before delivery it is not necessary for the seller to offer to perform thereafter, as such offer would be useless. When the contract of sale is executed and title has passed to the buyer, the seller may sue the buyer for the purchase price of the property. He may sue for the purchase price even though the property has not been delivered, as a delivery is not essential to the passing of the title. In case title has passed and no price has been agreed upon, the law implies a promise on the buyer's part to pay what the goods are reasonably worth. If the sale was made on credit the seller cannot sue until such credit has expired. If the title has not passed and the buyer refuses to accept the pro

perty, the seller cannot make him take the property but may sue him for damages. The seller in such case keeps his property and recovers from the purchaser the difference between the selling price and the market value of the goods. The seller may adopt the same course where the title has passed and the buyer refuses to accept. While a contract is still executory, the buyer has a right to repudiate the contract and the seller cannot thereafter do anything which will increase the damages for which the buyer is already liable. Thus, if one orders a machine built to order from a manufacturer, and while the machine is being built countermands the order, the manufacturer has no right to complete the machine and hold the buyer liable for its value, or for damages incurred after the order was countermanded. In such case the manufacturer would be entitled to recover as damages the difference between the reasonable cost of the construction of the machine and the selling price, and also for the loss incurred up to the time the order was countermanded. If the purchaser obtained the property by fraud so that the seller is entitled to rescind, the seller may do so, and if the purchaser refuses to give up the goods, the seller may replevy them, or the seller may sue for a conversion of the goods, or sue for damages by reason of the fraud.

The seller, when the buyer refuses to accept the property sold, has still another remedy, and this remedy he may exercise whether the contract is executed or executory. He may resell the property which is the subject of the contract for the best price obtainable and then sue the purchaser for the difference between the price obtained and the purchase price. The proper way to make such a sale is to give the buyer notice of the time and place of sale, although such notice is not absolutely necessary. The sale may be private or at auction. The seller also has a lien for the unpaid purchase price against the property sold. He has a right to keep the property sold unless credit has been given, until he has been paid the purchase price. This lien is good only while the goods remain in the seller's possession. It is also provided by statute in Wisconsin that no property shall be exempt on execution upon a judgment recovered for the whole or any part of the purchase price thereof. This applies, however, only between the original parties. If the buyer sells to a third person, the property cannot be taken from such third person for the purchase price due to the original seller.

The Supreme court of Wisconsin has lately rendered an interesting decision as to the rights of parties when the buyer in an executory contract of sale becomes insolvent before property is delivered to him. The following conclusions were arrived at: 1. A sale of property, nothing being said to the contrary, is presumed to be for cash on delivery thereof. 2. An executory sale of property on credit, contemplating that the vendor will part with control of the subject thereof in advance of obtaining pay therefor, is presumed to be on condition that the executory vendee is solvent and will so continue. 3. In the circumstances stated in the last preceding paragraph, if the vendee becomes insolvent while the subject of the transaction remains under the control of the vendor, though in transit to the former and regardless of whether the title has passed to him or not, the vendor may detain the property, remove from the contract the element of credit, giving due notice thereof to the vendee, and insists upon payment for the property before it passes under his control. 4. Executory contracts for the sale of property are presumed to have embodied in them the features mentioned in the last two preceding paragraphs. 5. In case the element of credit in an executory contract for the sale of property is removed because of the insolvency of the vendee, the contract stands in all respects the same as any sale for cash on delivery; and if it is breached by neglect or refusal of the vendee to consummate the transaction by paying the price agreed upon and accepting the property, the vendor may treat the contract as broken and thereupon proceed by any one of the following ways to redress the wrong: He may store the property for the buyer and sue for the purchase price; or may sell the property and recover any deficiency resulting; or may keep the property as his own and recover the difference between the contract price and the market price at the time of the breach and at the time and place of the delivery. 6. The sale may be made at auction or in a private way, so long as the way chosen it calculated to produce in money the full market value of the property. No notice of sale to the buyer is necessary, but notice of the intention to sell should be given so that the buyer may have an opportunity to comply with his contract. If a sale is properly made, the seller may recover from the buyer the difference between the amount realized and the contract price.

Remedies of buyer.-A buyer may have various remedies against a seller for breach of contract. A buyer cannot maintain a suit against the seller on a contract of sale unless he shows that he himself was ready and willing to perform his part of the contract. If the seller repudiates the contract it is not necessary for the buyer to show that he tendered performance or offered to perform, but he must simply show that he was able and ready to do so. Safe practice in such case, however, would be to make an offer of performance. When the sale is one for cash and the seller refuses to deliver, the buyer must show that he was ready to pay the price. If the buyer wishes to hold the seller to a delivery which has not been refused, he must tender to the seller the purchase price. When the title in the thing sold has passed to the buyer and the seller refuses to deliver, the buyer may maintain an action of replevin and get possession of the property purchased, or he may sue the seller for a conversion of the property. If the title has not passed, that is, the contract is executory, then the property still belongs to the seller and the buyer cannot enforce a delivery. In such case the buyer may maintain an action for damages for breach of contract. The buyer's damages in such case would be the difference between the selling price and the market value of the property at the time and place stipulated for delivery. It will be seen from this that even if the seller or buyer breaks a contract of sale, unless there is a difference between the selling price and the market value, there can be no recovery of damages, except under exceptional circumstances which it is not necessary here to discuss. If the buyer has already paid the purchase price and the seller fails to deliver, the buyer may rescind the contract and recover the purchase price paid, or he may sue for breach of contract and obtain as damages the difference between the selling price and market value, and the amount paid. What remedy a buyer should select in a given case will depend upon circumstances. For instance, if the property at the time and place fixed for delivery is worth less than the selling price, and the seller does not deliver, it would be best for the buyer to rescind and recover the purchase money, if already paid; whereas if the property were not worth more, it would be best to sue for damages for non-delivery. When there has been fraud in the transaction on the part of the seller, the buyer may

rescind and recover the purchase price, or he may keep the property and counterclaim for his damages, or if he has already paid the purchase price, he may sue for damages caused by the fraud. In case there is a breach of warranty there are several remedies, already spoken of. If the seller does not deliver at the time agreed upon, the buyer may hold him for the damage caused by the delay.

Who acquires title.-It is evident from what has already been said in this chapter that a person cannot be deprived of personal property unless he parts with his title to another. There are a few exceptions to this rule, where the title is divested by operation of law, but these are not important in this connection. Therefore, one who holds the property of another, either rightfully or wrongfully, but has acquired no title from such other, cannot transfer such property to another so as to give the latter a good title. It is for this reason that a thief cannot confer title to property stolen. For instance, a thief who has stolen a diamond, may sell it, and it may be transferred by sale any number of times from person to person; still the person from whom the diamond was stolen can reclaim it from any person in whose possession he may find it, although such purchaser bought it in good faith. Neither can a person sell more of an interest in property than he owns. For instance, the owner of onehalf of a piece of personal property cannot confer title to more than his share. The rule "let the buyer beware" applies here.

When the owner of personal property allows another to so conduct himself in reference to the property as though such other were the owner, and another, in reliance upon the latter's apparent ownership buys the property, the purchaser will be protected. Thus, if A owns a horse and allows B, in his presence, to treat the horse as his own and sell it to C, A cannot deny the sale. This is based on the ground of estoppel. If the owner under such circumstances were allowed to claim his property his conduct would amount to a fraud on an innocent purchaser. If a buyer of property allows the seller to retain possession for an unreasonable length of time and the seller sell the property again to an innocent purchaser, such second purchaser would acquire a good title against the first.

If the buyer acquires a voidable title to personal