The verdict of the jury disposes of the question whether the contract of sale was made and completed or not. The defendant acquiesces in the finding of the jury, as sustained by the evidence, and on this appeal abandons the first ground upon which he moved for a nonsuit.
The appellant now relies upon the proposition, that the act of the plaintiff, in selling the property, was a disaffirmance of the contract of sale, and a reclaiming of the title of the property, and is conclusive against his right to recover, in this or any other action.
The rule of the common law is, when the bargain is made and completed, the title passes to the purchaser, together with the hazards and risks incident to ownership, and the seller may retain ihe possession until payment is made, though the title is in the buyer. So far as the purchaser is concerned, his right to the possession depends upon payment, and he cannot take the goods, or sue for -them, until he performs by making payment. These rules apply to cash sales, without qualification. (2 Kent’s Com. 492. 1 Pars. on Cont. 525.) The vendor, upon the refusal of the vendee to complete the contract on' his part, by *213paying over the purchase money, has an election, and may resort to one of three remedies:
1. Upon tendering the property, and after giving the buyer a reasonable time to accept the property and pay for the same, the seller may regard the contract as abandoned by the purchaser, he being put in default by his refusal to pay. Then the seller may resell the property as his own, and apply the proceeds to his own use. And it is wholly immaterial to the buyer whether, on such sale, it brings more or less than the contract price, or is sold above or below its value. The vendor, by this step, abandons all right of action, against the vendee, and the latter has none against his vendor, even to recover back the whole or any part of the purchase money advanced on the contract.
2. The seller may retain the possession of the property as his security, and sue the purchaser for the contract price. When such payment is enforced and complete, the vendee is entitled to the possession of the property.
3. The vendor may resell the property, upon giving notice to the buyer of his intention so to do, and after applying the net proceeds towards payment of the contract price, may sue the purchaser for any balance that then remains unpaid. If more is realized than is due the seller, he must account to the buyer for the surplus. (Sands v. Taylor, 5 John. 395. Bement v. Smith, 15 Wend. 497. Des Arts v. Leggett, 16 N. Y. 585. Pollen v. LeRoy, 30 id. 558. Lewis v. Greider, 49 Barb. 606. Hinde v. Whitehouse, 7 East, 558.) When the vendor pursues the vendee by action, to recover the whole or a balance of the purchase money, he is acting in affirmance of the contract, .and counts upon the same.
At the time of the commencement of this action, the plaintiff had a cause of action of the form and nature set forth in the complaint. Having made this election of remedies, he had no right thereafter to sell the property, *214and the act was a breach of his duty as trustee of the property, if it were not tortious. He is now liable to the defendant, for that act, in a proper action. It is not necessary to decide,in disposing of this appeal,.whether the defendant might not, by leave of the court, have, by an amended answer, set up this sale, and asked the plaintiff to account for the proceeds in this action. It does not appear that he made any such request; but from the bill of exceptions it does appear, that all consideration of that view of the case was abandoned, on the trial, by the defendant.
[Fourth Department, General Term, at Buffalo, June 4, 1872.Concede that the pleadings were such that the defendant could urge that the act of the plaintiff in reselling the property, was done in view of abandoning the contract bn his part; yet, that was a question of fact to be passed upon by the jury and not by the court, on deciding a motion for a nonsuit. The attention of the court was not called to that question, in submitting the case to the jury.
But the plaintiff, having made his election to affirm the contract and sue for the unpaid purchase money, had no right to resell the property, or to disaffirm the contract and reclaim the property. The remedies given him are not concurrent. The choice between them having been made, the others are gone forever.
Hence it must follow, that the act of selling the property, by the plaintiff, was unauthorized, and if pleaded, would not be a bar to a recovery in this action. (Morris v. Rexford, 18 N. Y. 552.
The judgment appealed from should be affirmed.
Johnson, Talcott and Barker, Justices.]