session, are admissible and generally sufficient to prove a sale.123 So, parol evidence is often admissible to show the purpose for which an article was received, and may thus explain whether a transaction was a sale or a bailment, even where a receipt showing a bailment is given,124 but it is said that the evidence should be clear.125

§ 2628. Actions by seller.-The seller sometimes has an election of remedies. Thus, where the property has been obtained by a fraudulent sale, he may sue for the price under the contract,126 or, if he acts in time, he may disaffirm the contract and sue in tort,127 and in certain cases he has certain rights against the goods and may resell or exercise the right of stoppage in transitu,128 or, in some instances, he may maintain replevin. But the most usual remedy is an action for damages for breach of the contract, or an action for the price of the goods. The general rule has been laid down128* that in actions by the seller for damages for breach of contract, "subject to the usual rule of evidence, any fact is admissible in evidence tending to prove or disprove the existence and terms of the contract, performance by the plaintiff in accordance with the terms of the contract of all conditions. precedent or concurrent,129 or an excuse for non-performance, coupled with an ability and a willingness to perform130 and the amount of

123 Bunte v. Wilson, 8 Colo. App. 136, 45 Pac. 232.

124 McCabe v. McKinstry, 5 Dill. (U. S.) 509, 15 Fed. Cas. No. 8667. 125 See, Rodgers v. Crook, 97 Ala. 722, 12 So. 108.

128 Moller v. Tuska, 87 N. Y. 166; Patterson v. Prior, 18 Ind. 440; McCullough v. McCullough, 14 Pa. St. 295.

127 Kline v. Baker, 99 Mass. 253, 255; Prentiss v. Russ, 16 Me. 30; 1 Elliott Gen. Pr., § 300.

128 See notes in Farrell v. Richmond &c. R. Co., 102 N. C. 390, 9 S. E. 302, 3 L. R. A. 647; Fenkhausen v. Fellows, 20 Neb. 312, 21 Pac. 86, 4 L. R. A. 732; Kingman & Co. v. Dennison, 84 Mich. 608, 48 N. W. 26, 11 L. R. A. 347; Allen v. Maine &c. R. Co., 79 Me. 327, 9 Atl. 895, 1 Am. St. 312-314.

128* 24 Am. & Eng. Ency. of Law 1117.

129 Kimball v. Deere, 108 Iowa 676, 77 N. W. 1041; Penn v. Smith, 104 Ala. 445, 18 So. 38; Kingman v. Hanna Wagon Co., 176 Ill. 545, 52 N. E. 328, affirming Kingman & Co. v. Hanna &c. Co., 74 Ili. App. 22; Schofield v. Conley, 126 Mich. 712, 86 N. W. 129; Eppens &c. Co. v. Littlejohn, 164 N. Y. 187, 58 N. E.

19.

130 Walter v. Victor G. Bloede Co., 94 Md. 80, 50 Atl. 433; Fletcher v. Jacob Dold Packing Co., 169 N. Y. 571, 41 App. Div. (N. Y.) 30, 61 N. E. 1129; Diamond State Iron Co. v. San Antonio &c. R. Co., 11 Tex. Civ. App. 587; Shore Lumber Co. V. Claney, 102 Wis. 235, 78 N. W. 451; tender held unnecessary under the circumstances, in McHenry v. Bulifant, 207 Pa. St. 15, 56 Atl. 226.

damages suffered,181 involving usually proof of the real market value of the goods,132 and the contract price for the amount to be delivered."133 The burden of proof is generally upon the plaintiff to show performance upon his part in accordance with the terms of the contract,134 or that he was able and willing to perform.135 So, the burden is upon the seller suing for the price of goods under what he claims was an absolute sale, to show that fact,136 and the other facts necessary to constitute his cause of action.187 And where the statute made it a criminal offense to sell milk containing a less or smaller per cent. of solids or

milk fat than therein specified, it was held that the burden of proof, in an action to recover for the milk sold, was on the plaintiff to show that the milk had not been watered, and contained the statutory amount of solids, since a delivery for any other kind of milk would fail, as a matter of description, to be a compliance with the contract to sell and deliver milk.138 But where the defendants in an action to recover the price of lumber based their defense on the ground that the lumber was accepted by them under an agreement with plaintiff to hold and dispose of it as best they could for his benefit, and not to be paid for until sold by them, it was held that the burden of proof was on the defendants to establish such facts. 139 And, in one sense, the burden is usually upon the defendant to show any affirmative defense set up by him.140 So, it has been held that an admission in an action for the price of shoes that a certain amount was due, except as it might be reduced by proof of offsets or settlement, makes proof of delivery of the shoes unnecessary.141

§ 2629. Actions by buyer.-To entitle the buyer to maintain such an action for damages for failure to deliver, the seller must have made default in delivery,142 and, in a recent case, where the defendant had agreed to deliver to the plaintiff all the tomatoes grown on his land in a certain year, it was held incumbent on the plaintiff to show that tomatoes were so grown that year.143 So, the purchaser must have per

138 Copeland v. Boston Dairy Co., 184 Mass. 207, 68 N. E. 218.

139 Heidelbaugh v. Cranston, (Del.) 56 Atl. 367.

140 Middleton v. Kentucky Lumber Co., (Ky.) 66 S. W. 42; Perkins v. Schneider, 54 Minn. 368, 56 N. W. 39; Clement v. Drybread, 108 Iowa 701, 78 N. W. 235; Harvey v. Henry, 108 Iowa 168, 78 N. W. 850; Morris v. Wilaux, 159 Ill. 627, 43 N. E. 837; Christian v. Bryant, 102 Ga. 561, 27 S. E. 666; May v. Behrends, (Tex. Civ. App.) 50 S. W. 413; Ward v. Blake Mfg. Co., 5 U. S. App. 538, 56 Fed. 437; Tacoma Coal Co. v. Bradley, 2 Wash. St. 600, 27 Pac. 454, 26 Am. St. 890; as to evidence generally in actions for price of goods sold, see, Lilienthal v. Suffolk VOL. 3 ELLIOTT Ev.-72

&c. Co., 154 Mass. 185, 28 N. E. 151, 26 Am. St. 234; Beck &c. Co. v. Houppert, 104 Ala. 503, 16 So. 522, 53 Am. St. 77; Boston &c. R. Co. v. Sullivan, 177 Mass. 230, 58 N. E. 689, 83 Am. St. 277.

141 Judgment, Danziger v. Pittsfield Shoe Co., 107 Ill. App. 47, affirmed, Danziger v. Pittsfield Shoe Co., 204 Ill. 145, 68 N. E. 534.

142 Raisin Fertilizer Co. v. Barrow, Jr., Co., 97 Ala. 694, 12 So. 388; Coffin v. Reynolds, 21 Minn. 456; Guild v. Huwer, 1 Misc. (N. Y.) 432; Hockersmith v. Hanley, 29 Ore. 27, 44 Pac. 497.

143 Hartnell v. Baker, (Del.) 56 Atl. 672; see also, Eureka Fire Hose Co. v. Reynolds, 86 N. Y. S. 753.

144

formed all conditions precedent to his right to a delivery of the property. Thus, where payment of the purchase price is a condition precedent to his right to delivery, he must show a tender of the price,115 or circumstances excusing a tender.146 But where payment was not to be made in advance of delivery, the purchaser need not show a tender in order to enable him to recover for non-delivery;147 yet where payment was to be made on delivery, the purchaser in an action for damages for non-delivery must generally show that he was able, ready and willing to pay,148 although if the seller notifies him of his inability to deliver them it seems that the buyer need not show that he was able, ready and willing to pay.149 And it is the general rule that where, under an executory contract, the seller positively notifies the buyer that he will not deliver the goods, or absolutely disables himself from so doing, neither a tender of the price nor proof of the buyer's readiness and willingness to accept and pay for them is necessary to sustain such an action for damages.150 The buyer may also have an action for a breach of warranty in a proper case, or, when sued for the price, he may give in evidence the breach of warranty in

144 Cresswell Ranch &c. Co. v. Martindale, 27 U. S. App. 277, 63 Fed. 84; Hanson v. Slaven, 98 Cal. 377, 33 Pac. 266; Pape v. Ferguson, 28 Ind. App. 298, 62 N. E. 712; Stephenson v. Cady, 117 Mass. 6; King v. Faist, 161 Mass. 449, 37 N. E. 456; Bronson v. Wiman, 8 N. Y. 182; Lowry v. Barelli, 21 Ohio St. 324; Faber v. Houghman, 36 Ore. 428, 59 Pac. 547.

145 Sivell v. Hogan, 115 Ga. 667; Pusey v. McElveen Commission Co., 93 Ga. 773, 21 S. E. 150; Pakas v. Hollingshead, (N. Y. City Ct. Gen. T.) 60 N. Y. S. 991; Lawrence v. Everett, (C. Pl. Gen. T.) 11 N. Y. S. 881.

146 Burbank v. Wood, 3 Jones L. (48 N. Car.) 30; Clark v. Bache, 186 Pa. St. 343, 40 Atl. 484; see also, as to what will excuse, Lieberman v. Isaacs, 43 Minn. 186, 45 N. W. 8; Lea v. Ennis, 6 Houst. (Del.) 433; Harriss v. Williams, 3 Jones L. (N. Car.) 483, 67 Am. Dec. 253. Thus,

he need not make a tender of actual cash where the seller has peremp torily refused to deliver "because the price had gone up." U. B. Blacklock &c. Co. v. W. D. Clark & Bros., 133 N. Car. 306, 45 S. E. 642.

147 Crystal Palace Flouring-Mills Co. v. Butterfield, 15 Colo. App. 246, 61 Pac. 479; Guilford v. Mason, 22 R. I. 422.

148 Phillips v. Williams, 39 Ga. 597; Tichenor v. Newman, 186 Ill. 264, 57 N. E. 826; Beard v. Sloan, 30 Ind. 279; Simmons v. Green, 35 Ohio St. 104; Diem v. Koblitz, 49 Ohio St. 41, 29 N. E. 1124, 34 Am. St. 531.

149 Missouri &c. Coal Co. v. Pomeroy, 80 Ill. App. 144.

150 Crist v. Armour, 34 Barb. (N. Y.) 378; Bunge v. Koop, 48 N. Y. 225; Follansbee v. Adams, 86 Ill. 13; Lowe v. Harwood, 139 Mass. 133, 29 N. E. 538; Parker v. Pettit, 43 N. J. L. 512; see also, Dingley v. Oler, 117 U. S. 503, 6 Sup. Ct. 850.

mitigation of damages. 151 The question as to when, if at all, a parol warranty may be shown has already been considered,152 and the authorities cited below, with those elsewhere referred to in this chapter, will furnish sufficient illustrations of the application of the rules of evidence in cases involving an alleged breach of warranty.153