(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section [55-2-710 NMSA 1978], the price:

(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and

(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.

(2) Where the seller sues for the price, he must hold for the buyer any goods which have been identified to the contract and are still in his control except that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold.

(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (Section 2-610 [55-2-610 NMSA 1978]), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for nonacceptance under the preceding section [55-2-708 NMSA 1978].

History: 1953 Comp., § 50A-2-709, enacted by Laws 1961, ch. 96, § 2-709.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

Prior uniform statutory provision. — Section 63, Uniform Sales Act.

Changes. — Rewritten, important commercially needed changes being incorporated.

Purposes of changes. — To make it clear that:

1. Neither the passing of title to the goods nor the appointment of a day certain for payment is now material to a price action.

2. The action for the price is now generally limited to those cases where resale of the goods is impracticable except where the buyer has accepted the goods or where they have been destroyed after risk of loss has passed to the buyer.

3. This section substitutes an objective test by action for the former "not readily resalable" standard. An action for the price under Subsection (1) (b) can be sustained only after a "reasonable effort to resell" the goods "at reasonable price" has actually been made or where the circumstances "reasonably indicate" that such an effort will be unavailing.

4. If a buyer is in default not with respect to the price, but on an obligation to make an advance, the seller should recover not under this section for the price as such, but for the default in the collateral (though coincident) obligation to finance the seller. If the agreement between the parties contemplates that the buyer will acquire, on making the advance, a security interest in the goods, the buyer on making the advance has such an interest as soon as the seller has rights in the agreed collateral. See Section 9-204.

5. "Goods accepted" by the buyer under Subsection (1) (a) include only goods as to which there has been no justified revocation of acceptance, for such a revocation means that there has been a default by the seller which bars his rights under this section. "Goods lost or damaged" are covered by the section on risk of loss. "Goods identified to the contract" under Subsection (1) (b) are covered by the section on identification and the section on identification notwithstanding breach.

6. This section is intended to be exhaustive in its enumeration of cases where an action for the price lies.

7. If the action for the price fails, the seller may nonetheless have proved a case entitling him to damages for non-acceptance. In such a situation, Subsection (3) permits recovery of those damages in the same action.

Point 4: Section 1-106.

Point 5: Sections 2-501, 2-509, 2-510 and 2-704.

Point 7: Section 2-708.

"Action". Section 1-201.

"Buyer". Section 2-103.

"Conforming". Section 2-106.

"Contract". Section 1-201.

"Goods". Section 2-105.

"Seller". Section 2-103.

Law reviews. — For article, "Special Property Under the Uniform Commercial Code: A New Concept in Sales," see 4 Nat. Resources J. 98 (1964).

For article, "Buyers and Sellers of Goods in Bankruptcy," see 1 N.M. L. Rev. 435 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of action to recover purchase price under sale of corporate stock where title has not passed as affected by provisions of sales act, 9 A.L.R. 275.

Contract requiring seller to look to property loan for payment as affecting action for purchase price, 17 A.L.R. 714.

Repudiation of contract by buyer as affecting seller's right to ship goods and bring action to recover purchase price, 27 A.L.R. 1231.

Dishonor of draft or check for purchase price on cash sale as affecting seller's rights in respect to property or its proceeds, 31 A.L.R. 578, 54 A.L.R. 526.

Right to recover installments not due upon buyer's default in payment of installment due, in absence of acceleration clause, 57 A.L.R. 825.

Right of seller to rescind or refuse further deliveries on buyer's failure to pay for installments, where contract expressly provides remedy, 75 A.L.R. 619.

Effect of sales act on right of action to recover purchase price of corporate stock where title has not passed, 99 A.L.R. 275.

Rights of buyer in action by seller for purchase price as affected by invalidity of, or subsequent changes or developments with respect to taxes included in purchase price, 115 A.L.R. 667, 132 A.L.R. 706.

Presumptions and burden of proof as to market price or value of goods in action by seller against buyer who refuses to accept goods, 130 A.L.R. 1336.

Seller's knowledge of purchaser's intention to put property to an illegal use as defense to action for purchase price, 166 A.L.R. 1353.

Right of purchaser in making tender to deduct from agreed purchase price amount of obligations which it is the vendor's duty to satisfy, 173 A.L.R. 1309.

Measure of damages for buyer's breach of contract to purchase article from dealer or manufacturer's agent, 24 A.L.R.2d 1008.

Right of action for breach of contract which expressly leaves open for future agreement or negotiation the terms of payment for property, 68 A.L.R.2d 1221.

Liability for purchases on credit or courtesy card, or on credit coin or plate, 15 A.L.R.3d 1086.

77A C.J.S. Sales § 348 et seq.