Page:Harvard Law Review Volume 9.djvu/135

107 THE RISK OF LOSS. 10/ the transfer of the risk at a different time from the moment when the title passes.^ Thus far it has been assumed that the buyer was not in default at the time of the accident. If the buyer was in default, the seller has several remedies against him. He is generally allowed to treat the goods as the buyer's, and sue for the price, or he may retain the goods and sue for damages for breach of the contract. If he takes the first course, he becomes a bailee, and if a loss occurs without his fault the buyer must bear the loss; if the latter course, the loss falls on the seller. If the seller has not indicated which course he intends to pursue, the loss would probably fall on him, since the former remedy is the more unusual, and it would not be assumed that the seller was holding the property for the benefit of the buyer unless he had indicated it in some way.^ The law in regard to risk in sales of personal property is thus generally settled, and though without discussion, yet probably cor- rectly and in accordance with the intention of the parties. There are a few cases, however, where there is a conflict of decision. Sup- pose the seller delivers the property to the buyer with the agree- ment that the seller shall retain title until the price is paid, — the ordinary case of conditional sale, — and before the time for pay- ment the property is destroyed. This sort of transaction has be- come very common of late years, and not infrequently the buyer gives a promissory note containing the statement that the note is given for a specified chattel, the title of which is to remain in the seller until the note is paid. Should the loss fall on the seller because he holds the legal title ?^ 1 Inglis V. Stock, lo App. Cas. 263; Martineau v. Kitching, L. R. 7 Q. B, 436; Castle V. Playford, L. R. 5 Ex. 165 ; 7 ib. 98 ; Alexander v. Gardner, i Bing. N. C. 671 ; Fragano v. Long, 4 B. & C. 219. 2 See Neal v. Shewalter, 5 Ind. App. 147, where the loss was thrown on the sellers because they "did not place themselves in the position of bailees for the " purchasers. ' In Top V. White, 12 Heisk. 165, this question arose in regard to slaves which had been delivered with an estate under a contract of sale, but the title had been retained. Before the contract was fulfilled the slaves were emancipated. It was held that the purchaser must pay the price, the court saying (at p. 190) : "In the application of the maxim, property perishes to the owner, I understand by the owner not the party who has the naked legal title, but the party who is the beneficial equitable owner." So makers of promissory notes such as those described have been held liable, though the property which has the consideration of the note perished before its maturity, Burnley v. Tufts, 66 Miss. 48; Tufts v. Wynne, 45 Mo. App. 42 ; Tufts v. Grifiin, 107 N. C. 47. Contrary decisions are Randle v. Stone, 77 Ga. 501, and Arthur v. Black- man, 63 Fed. Rep. 536 (North Dist. of Washington). In Swallow v. Emery, m Mass. 355, such a note was held not to be a negotiable IS