Buffington v. Quantin , 1851 Pa. LEXIS 174 ( 1851 )

Per Curiam.

The vendor of a thing rejected and unpaid for, may have it sold at auction on the vendee’s account, because he has no other means of holding the vendee to the bargain, and, at the same time enforcing his lien for the price. As he could not have the thing and the price of it too, an action for the price would result in nominal damages, and the event would virtually be a rescission of the contract. He is therefore allowed to sell the thing at auction, and charge the vendee with the difference of price. But a vendee who receives the thing into his possession, before he has become acquainted with its qualities, has, if dissatisfied, but one of two courses to pursue: either to retain it and claim a deduction, or reject it and attempt to rescind the contract. In pursuing tbe latter, he has no contract to enforce. His game is to get rid of the bargain, by rejecting the vendor’s performance of his part of it. To this end it is necessary that he exercise no act of ownership, or give the property no direction but what is necessary to send it in specie to the vendor. He is not at liberty to destroy it by wantonly exposing it; but on the refusal of the vendor to take it away, he might leave it at his door, giving notice of the fact. But he might not send it to auction, because the necessities of the case would not require it. The charge of the judge was therefore unexceptionable.

Judgment affirmed.