Ames v. Moir

Citations

• 130 Ill. 582
• 22 N.E. 535

Syllabus

<p>1. Contracts—contract in writing—not signed by the party sought to be charged. Where one party gives another his written agreement to purchase personal property, in which the buyer and seller are both named, and the price to be paid and the time of the delivery are fixed, such written contract will bind the seller receiving it, the same as if he also had signed it. Such a paper is a written contract, within the meaning of the first section of the Limitation act of November 5,1849.</p> <p>2. Sales—refusal of buyer to pay—on delivery or offer to deliver— -rights and remedies of the seller. A contract for the sale of goods can not be rescinded, and at the same time an action be maintained upon it for the contract price of the goods. But where the purchaser fraudulently obtains possession without paying, delivery and payment being concurrent acts, the vendor may repossess himself of the property by replevin, and thereby preserve his lien for the price, without rescinding the sale.</p> <p>3. Where the buyer of goods refuses to pay on delivery, or an offer to deliver the goods, the vendor may store the same for the buyer, give notice that he has done so, and then recover the full contract price; or he may keep the goods, and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery; or the vendor may sell the goods to the best advantage, and recover of the vendee the loss, if the goods fail to bring the contract price.</p> <p>4. The vendor’s remedy, after a re-sale, made in the absence of an express reservation of the right, is in assumpsit on the original contract, which will not be rescinded by the re-sale. So when the vendor is unable to regain possession of his goods wrongfully taken, for the reason that the fraudulent vendee has pledged them to an innocent party, without notice of the vendor’s rights, the latter, notwithstanding he may have replevied the goods, may sue the vendee for the original price,