By the Court, Rosekrans, J.
If the vendee of goods, which, by the terms of the contract of sale, are to be delivered and paid for at a specified time, does not tender the price and take the goods within the time agreed upon, the vendor may request the vendee to pay for and take the goods, and in case of his refusal may abandon and rescind the contract and dispose of the goods as if no contract had been made; or he may, on due notice to the vendee, resell the goods, as the property of the vendee, and recover of the vendee the sum lost by the resale, together with the expenses of keeping the goods. This rule was established in this court more than half a century ago, and has never been questioned. (Sands v. Taylor, 5 John. 396. Bement v. Smith, 15 Wend. 497. Crooks v. Moore, 1 Sandf. S. C. R. 297, 302.) The right of the vendor, under the circumstances stated, to treat the contract of sale as abandoned and rescinded, was declared by Justice Holt in 1 Salk. 113. If the contract is rescinded, the rights of the parties are the same as if the contract had never been made. (2 Parsons on Contracts, 189. 2 E. & B. 175. 3 C. & R. 678.) Ho action can be founded upon it by either party. If the goods are resold by the vendor, after the contract of sale is rescinded, it is a sale of his own goods, not of the vendee’s. If the contract is not rescinded, and the goods are resold, they are sold as the property of the vendee. Spencer, J. said, in Sands v. Taylor, (supra,) “ There are no decisions in the books which [306]*306either establish or deny this rule; hut it appears to me to he founded on principles dictated hy good sense and justice.” The vendor is said to be, hy necessity, the mere agent or trustee to manage the property, and being thus constituted agent or trustee, he must either abandon the property, or take a course more to the advantage of the vendee, by selling it. The property sold, in that case, was perishable. Van S"ess, J. said, “ The article was perishable, and the interests of all parties required that the most should he made of it.” Kent, Oh. J. said, “ The usage in such cases, is to sell the article after due notice to the other party to take it, and that in default of doing it, the article will he sold.” “ It would be unreasonable to oblige the vendor to let the article perish on his hands, and run the risk of the solvency of the vendee.”
In Maclean v. Dunn, (4 Bing. 722,) Best, Ch. J. said, “ It is admitted that perishable articles may be resold. It is difficult to say what may he esteemed perishable articles and what not; but if articles are not perishable, price is, and may alter in a few days, or a few hours.” “ It is a practice, therefore, founded on good sense, to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it except on the authority of decided cases.” “We are anxious to confirm a rule consistent with convenience and law. It is most convenient that when a party refuses to take goods he has purchased, they should be resold, and that he should be liable for the loss, if any, upon the resale. The goods may become worse the longer they, are kept; and, at all events, there is a risk of the price becoming lower.”
It is not perhaps material, at this late day, to inquire whether the rule is founded upon any other basis than that of usage and convenience. The vendor never could sell and satisfy his lien for the price of the goods. (Cross on Liens, 47.) The usage probably had its origin in the stipulation [307]*307for a resale, and the fact that an express contract was usually printed in the conditions of sales at auction, or in contracts entered into by the East India Company, (Maclean v. Dunn, supra; Chitty on Contracts, 431, ed. 1844.) It is sufficient that the rule has been established. The right however to resell goods, under the rule, when the contract is not rescinded, and when there is no express stipulation authorizing it in the contract, can only be exercised by the vendor after due notice to the vendee, of the time when and place where the resale will be made. This course was adopted in Sands v. Taylor, in which the rule was established; and in Crooks v. Moore, and Maclean v. Dunn. Property pledged as security for a debt can only be sold after the debtor has been called upon to redeem the pledge, and after due notice of the time and place of sale. (Stearns v. Marsh, 4 Duer, 227, 232.) It is quite as material for the interests of the vendee of chattels, who is to be charged with any deficiency which may arise upon a resale, that he should have notice of the time and place of the resale; and none the less reasonable and just, that he should have such notice. The plaintiff did not demand payment of the price of the property sold, nor did he aver or prove that he gave notice to the defendant that in case he did not pay the price or take the property the plaintiff would sell it and hold the defendant for any deficiency, or that he would sell it at all. To the plaintiff’s question, “ I want to know what you are going to do about those lambs ?” the defendant replied, “you have kept them until the time is past; you may sell them or do what you please with themand the plaintiff rejoined, “if I knew you was going to serve me in this way, I would have sold them before.” This was the substance of all the conversation, in the only interview between the parties after the time when the property was to have been paid for and taken by the defendant, and the time of the resale. The defendant objected to proof of what the plaintiff obtained on the resale, as irrelevant and immaterial; also [308]*308to proof of what it was worth to keep the property, for the same reasons.
Upon the plaintiff’s case, as made hy himself, he did not show any cause of action. Had he been allowed to give the proof which was objected to and rejected, it would not have helped his case. Under the circumstances, the language of the defendant could only be construed into a consent to abandon the contract, and the act of the plaintiff in reselling the property, as an assent on his part to a rescinding of the contract.
The third ground of appeal stated in the plaintiff’s notice of appeal is insisted upon as sufficient to require a reversal of the judgment .of the justice. It is in these words : “ When the jury returned to render their verdict, no one appeared or answered for the. plaintiff.” Assuming the fact to be as stated, it is no ■ ground of error.. The statute does not require “ that any one shall appear, for the plaintiff on receiving the verdict.” ■ It declares, (1 R, S. 143, § 110, 5th ed.) “ Previous to receiving the verdict, the plaintiff shall be called.” This was done by the justice, or at least it was not alleged as a ground of error that he was not called. The section then proceeds as follows: “If he, the plaintiff, be absent, and no one appear for him, the verdict shall not be received.” To have made this point available as a ground of error, it should have been stated that the plaintiff was absent when the verdict was received, and no one appeared or answered for -him.
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By the Court, Rosekrans, J.
If the vendee of goods, which, by the terms of the contract of sale, are to be delivered and paid for at a specified time, does not tender the price and take the goods within the time agreed upon, the vendor may request the vendee to pay for and take the goods, and in case of his refusal may abandon and rescind the contract and dispose of the goods as if no contract had been made; or he may, on due notice to the vendee, resell the goods, as the property of the vendee, and recover of the vendee the sum lost by the resale, together with the expenses of keeping the goods. This rule was established in this court more than half a century ago, and has never been questioned. (Sands v. Taylor, 5 John. 396. Bement v. Smith, 15 Wend. 497. Crooks v. Moore, 1 Sandf. S. C. R. 297, 302.) The right of the vendor, under the circumstances stated, to treat the contract of sale as abandoned and rescinded, was declared by Justice Holt in 1 Salk. 113. If the contract is rescinded, the rights of the parties are the same as if the contract had never been made. (2 Parsons on Contracts, 189. 2 E. & B. 175. 3 C. & R. 678.) Ho action can be founded upon it by either party. If the goods are resold by the vendor, after the contract of sale is rescinded, it is a sale of his own goods, not of the vendee’s. If the contract is not rescinded, and the goods are resold, they are sold as the property of the vendee. Spencer, J. said, in Sands v. Taylor, (supra,) “ There are no decisions in the books which [306]*306either establish or deny this rule; hut it appears to me to he founded on principles dictated hy good sense and justice.” The vendor is said to be, hy necessity, the mere agent or trustee to manage the property, and being thus constituted agent or trustee, he must either abandon the property, or take a course more to the advantage of the vendee, by selling it. The property sold, in that case, was perishable. Van S"ess, J. said, “ The article was perishable, and the interests of all parties required that the most should he made of it.” Kent, Oh. J. said, “ The usage in such cases, is to sell the article after due notice to the other party to take it, and that in default of doing it, the article will he sold.” “ It would be unreasonable to oblige the vendor to let the article perish on his hands, and run the risk of the solvency of the vendee.”
In Maclean v. Dunn, (4 Bing. 722,) Best, Ch. J. said, “ It is admitted that perishable articles may be resold. It is difficult to say what may he esteemed perishable articles and what not; but if articles are not perishable, price is, and may alter in a few days, or a few hours.” “ It is a practice, therefore, founded on good sense, to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it except on the authority of decided cases.” “We are anxious to confirm a rule consistent with convenience and law. It is most convenient that when a party refuses to take goods he has purchased, they should be resold, and that he should be liable for the loss, if any, upon the resale. The goods may become worse the longer they, are kept; and, at all events, there is a risk of the price becoming lower.”
It is not perhaps material, at this late day, to inquire whether the rule is founded upon any other basis than that of usage and convenience. The vendor never could sell and satisfy his lien for the price of the goods. (Cross on Liens, 47.) The usage probably had its origin in the stipulation [307]*307for a resale, and the fact that an express contract was usually printed in the conditions of sales at auction, or in contracts entered into by the East India Company, (Maclean v. Dunn, supra; Chitty on Contracts, 431, ed. 1844.) It is sufficient that the rule has been established. The right however to resell goods, under the rule, when the contract is not rescinded, and when there is no express stipulation authorizing it in the contract, can only be exercised by the vendor after due notice to the vendee, of the time when and place where the resale will be made. This course was adopted in Sands v. Taylor, in which the rule was established; and in Crooks v. Moore, and Maclean v. Dunn. Property pledged as security for a debt can only be sold after the debtor has been called upon to redeem the pledge, and after due notice of the time and place of sale. (Stearns v. Marsh, 4 Duer, 227, 232.) It is quite as material for the interests of the vendee of chattels, who is to be charged with any deficiency which may arise upon a resale, that he should have notice of the time and place of the resale; and none the less reasonable and just, that he should have such notice. The plaintiff did not demand payment of the price of the property sold, nor did he aver or prove that he gave notice to the defendant that in case he did not pay the price or take the property the plaintiff would sell it and hold the defendant for any deficiency, or that he would sell it at all. To the plaintiff’s question, “ I want to know what you are going to do about those lambs ?” the defendant replied, “you have kept them until the time is past; you may sell them or do what you please with themand the plaintiff rejoined, “if I knew you was going to serve me in this way, I would have sold them before.” This was the substance of all the conversation, in the only interview between the parties after the time when the property was to have been paid for and taken by the defendant, and the time of the resale. The defendant objected to proof of what the plaintiff obtained on the resale, as irrelevant and immaterial; also [308]*308to proof of what it was worth to keep the property, for the same reasons.
Upon the plaintiff’s case, as made hy himself, he did not show any cause of action. Had he been allowed to give the proof which was objected to and rejected, it would not have helped his case. Under the circumstances, the language of the defendant could only be construed into a consent to abandon the contract, and the act of the plaintiff in reselling the property, as an assent on his part to a rescinding of the contract.
The third ground of appeal stated in the plaintiff’s notice of appeal is insisted upon as sufficient to require a reversal of the judgment .of the justice. It is in these words : “ When the jury returned to render their verdict, no one appeared or answered for the. plaintiff.” Assuming the fact to be as stated, it is no ■ ground of error.. The statute does not require “ that any one shall appear, for the plaintiff on receiving the verdict.” ■ It declares, (1 R, S. 143, § 110, 5th ed.) “ Previous to receiving the verdict, the plaintiff shall be called.” This was done by the justice, or at least it was not alleged as a ground of error that he was not called. The section then proceeds as follows: “If he, the plaintiff, be absent, and no one appear for him, the verdict shall not be received.” To have made this point available as a ground of error, it should have been stated that the plaintiff was absent when the verdict was received, and no one appeared or answered for -him. If the plaintiff was present when the jury delivered their verdict, as we must assume that he was, from the fact that the point was not taken; and if being so present, he was called before the verdict was received, as we must also assume for the same reason; the fact that no one appeared for him or answered for him, is no ground for not receiving the verdict. If he was present when he was called, and made no answer, the verdict was properly received. Qui facet consentire videtur. This was held in Oakley v. Van Horn, (21 Wend. 306.) Cowen, J. says: “ The statute is merely [309]*309directory, in respect to the ceremony of calling the plaintiff. The object is to ascertain whether he be present; and it is enough that he be actually present, and not objecting. Non constat, that he was desirous to have a nonsuit entered. If otherwise, he might have said so; or have actually withdrawn, as in Platt v. Storer, (5 John. 346.)”
Warren General Term,
July 9, 1861.
It is unnecessary to consider the other questions in this case. The judgment of the county court should be reversed and that of the justice affirmed.
Rosekrans, Potter and Bockes, Justices.]