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this pretense of authority, though he do not warrant them, and though it be not averred that he sold them knowing them to be the goods of the stranger, B shall have an action for this deceit." (r) By the civil law, if the vendor knowingly sold a thing belonging to another person, the purchaser might sue for the recovery of damages without waiting for an eviction. (s)

612. Warranty of title.-" Where one having the possession of any personal chattel, sells it, the bare affirming it to be his amounts to a warranty of the fact and an action lies on the affirmation; for his having possession is a color of title, and perhaps no other title can be made out. Aliter, where the seller is out of possession; for then there may be room to question the seller's title; and caveat emptor in such a case to have either an express warranty or a good title. (t) "This distinction by Holt," observes BULLer, J., "is not mentioned by Lord Raymond, who reports the same case; and if an affirmation at the time of sale be a warranty, I cannot perceive a distinction between the vendor's being in or out of possession. The thing is bought of him in consequence of his assertion; and, if there be any difference, it seems to me that the case is strongest against the vendor when he is out of possession, because then the vendee has nothing but the warranty to rely on. (u)

613. Implied warranties of title on the part of

(r) 1 Rolle Abr. 90 pl. 5; 91 pl. 7. See Pasley v. Freeman, 3 T. R. 59.

(s) Si sciens alienam vem ignoranti mihi vendideris, etiam priusquam evincatur, utiliter me ex empto acturum putavit in id, quanti mea interest micam esse factam. Dig. lib. 19, tit.

I, lex. 30, § I.

210.

(t) Medina v. Stoughton, 1 Salk. Crosse v. Gardner, Carth. 90. Adamson v. Jarvis, 4 Bing. 73. Harding v. Freeman, Sty. 310. Rosewell v. Vaughan, Cro. Jac. 197.

(u) Pasley v. Freeman, 3 T. R. 58.

persons who sell as owners.-Wherever a man sells goods as owner, he impliedly undertakes and promises that the goods are his own goods, and that he has a right to make the sale and transfer he professes to make; and if he was not the owner at the time of the sale, and was not selling his own goods but the goods of a third party, who subsequently claims them and deprives the purchaser of them, he is responsible in damages for the breach of such implied undertaking. (x) By the civil law," observes BLACKSTONE, “an implied warranty was annexed to every sale in respect of the title of the vendor; and so, too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own and the title proves deficient, without any express warranty for that purpose." (y) Such is the case in the Roman law, (2) the French law, (a) the Scotch law, and all the various systems of jurisprudence founded on the Roman code; and this, too, is the case in the American law, founded on the principles of our own common law. (b) It has been decided by the Court of Exchequer that the law does not imply from the mere fact of the sale of a specific chattel any undertaking or warranty from the vendor that he is the owner of, or has a good title to, the thing he sells. (c) But the Court of Queen's Bench has held that, whenever a man sells goods generally, and not in any particular character or capacity, such as auctioneer, agent, sheriff, pawn

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broker, pledgee, &c., he must be taken to sell as owner. (d)'

614. Sales by sheriffs, agents, trustees, or persons

(d) Lee, C. J., commenting on the case of L'Apostre v. Le Plastrier (cited in Ryall v. Rowles, I Ves.

senr. 351). Simms v. Marryat, 20 L. J., Q. B. 458.

'The rule is unquestioned with us, and such title is taken to be implied if the vendor have possession. Whitney v. Heywood, 6 Cush. 82; Sargent v. Currier, 49 N. H. 310; Storm v. Smith, 43 Miss. 497; Butler v. Tufts, 13 Me. 302; Huntington v. Hall, 36 Id. 501; McCabe v. Morehead, I Watts & S. 513; Chism v. Wood, Hardin, 531; Bennett v. Bartlett, 6 Cush. 225; Vibbard v. Johnson, 19 Johns. 78; Case v. Hall, 24 Wend. 102; Dorr v. Fisher, 1 Cush. 273; Burt v. Dewey, 40 N. Y. 483; Hoe v. Sanborn, 21 Id. 552; Thurston v. Spratt, 52 Me. 202; Hale v. Smith, 6 Greenl. 420; Eldridge v. Wadleigh, 3 Fairf. 372; Payne v. Rodden, 4 Bibb. 304; Cozzins v. Whittaker, 3 Stew. & Port. 322; Inge v. Bond, 3 Hawks, 101; Mockbee v. Gardner, 2 H. & Gill, 176; Coolidge v. Brigham, 1 Met. 551; Sweet v. Colgate, 20 Johns. 196, Reid v. Barber, 3 Cowen, 272; Vibbard v. Johnson, 19 Johns. 77; McKnight v. Devlin, 52 N. Y. 399, 401; Darst v. Brockway, 11 Ohio, 462; Lines v. Smith, 4 Fla. 47; Chancellor v. Wiggins, 4 B. Mon. 201; Colcock v. Goode, 3 McCord, 513; Ricks v. Dillahunty, 8 Porter, 134; Williamson v. Sammons, 34 Ala 691; Gookin v. Graham, 5 Humph. 484; Scott v. Scott, 2 A. K. Marsh, 215; McCoy v. Artcher, 3 Barb. 323; Heermance v. Vernoy, 6 Johns. 5; per Shaw, Ch. J., in Dorr v. Fisher, 1 Cush. 273; Emerson v. Brigham, 10 Mass. 202; Bucknam v. Goddard, 21 Me. 71; Shattuck v. Green, 104 Mass. 42, 45; McCoy v. Artcher, 3 Barb. 233. The exception is when the seller has no actual or constructive possession, but a mere naked interest; Whitney v. Heywood, 6 Cush. 82; and where the goods are in possession of a third party the vendor buys at his own peril; Andres v. Lee, 1 Dev. & Bat. Eq. 318; Emerson v. Brigham, 10 Mass. 202; Pratt v. Philbrook, 32 Me. 23; Scranton v. Clark, 39 N. Y. 220; Huntingdon v. Hall, 36 Me. 501; McCoy v. Artcher, 3 Barb. 323; Dresser v. Ainsworth, 9 Id. 619; Edick v. Crim, 10 Id. 445; Long v. Hickingbottom, 28 Miss. 772. If one knows he has no title to what he is selling, he can not recover it from the purchaser, but the purchaser himself is liable to the real

assuming to sell in some special character or capacity and not as owners-Caveat emptor.-Whenever a man does not sell goods as owner, but in some special character or capacity, and the purchaser has notice thereof, he is bound to look into the title of his vendor; for there is not, under such circumstances, any implied warranty of title on the part of the vendor. (e) The latter merely undertakes and promises that he does not, at the time he sells, know of any defect in his authority or title to sell; and he can not be made responsible for the re-payment of the purchase-money, unless it can be proved that he knew he had no right or title to sell, and that consequently his conduct was fraudulent. Thus, in the case of sales by sheriffs of goods and chattels taken in execution, the sheriff does not impliedly warrant his title to sell, or warrant the purchaser against eviction; he merely promises that he does not, at the time he sells, know of any defect in his authority, or that he has no right or title to sell. (f)' So in the case of sales by pawn

(e) Bagueley v. Hawley, L. R., 2 C. P. 625; 36 L. J., C. P. 328.

(ƒ) Chapman v. Spiller, 14 Q. B.

621.

owner for detention and use of the property; Sweetman v. Prince, 62 Barb. 256. The implied warranty of title has been held to extend to a prior lien or incumbrance; Sargent v. Currier, 49 N. H. 310; Dresser v. Ainsworth, 9 Barb. 619; there is no such implied warranty of title in a sale by executors or administrators, or trustees; Prescott v. Holmes, 7 Rich. Eq. 9; Blood v. French, 9 Gray, 197; Mockbee v. Gardner, 2 H. & Gill, 176; Ricks v. Dillahunty, 8 Porter, 133; Forsythe v. Ellis, 4 J. J. Marsh. 298; Brigham v. Maxey, 15 III. 295; as to title implied, but not in the vendor at the time of the sale, and whether it inures to the purchaser, consult Sherman v. Champlain Transportation Co., 31 Vt. 161.

' Davis v. Hunt, 2 Bailey, 412; Yates v. Bond, 2 McCord, 382; Puckett v. U. S., 19 L. Rep. 18; Rodgers v. Smith, 2 Cart. (Ind.) 526; Bashore v. Whisler, 3 Watts, 490; Stone v.

brokers of unredeemed pledges, the pawnbroker only warrants the subject-matter of the sale to be a pledge, the time for the redemption of which has expired. He does not warrant or promise that the pledgor had a title to pledge the article; nor does he impliedly warrant the purchaser against eviction. As he has sold in a special character or capacity, he impliedly sells and agrees to transfer his own title and interest in the subject-matter of the sale, and no more; and that being so, it is the duty of the purchaser to inquire into the title; and if he neglects so to do, and it subsequently appears that the pledgor had no title to pledge, nor the pawnbroker to sell, and the purchaser is evicted, he can not recover compensation for his loss, unless he can establish a case of fraud. (g)

615. Sale by a vendor of such a title and interest as he actually possesses.-A distinction has been made in some cases between a sale by a person who is in possession of the goods he sells and by a person who is out of possession, and sells merely his right or title to goods which are in the possession of a third party. Thus it is said that, if a man sells a horse, whereof another is possessed, without any covenant or warranty for the enjoyment, it is at the peril of him who buys; and the latter shall have no action at law for the recovery of his money, because he might have protected himself by the contract. (h) This is undoubtedly the case, if the possession of the third party is an adverse possession, and the title is disputed, and the vendor

(g) Morley v. Attenborough, 3 (h) Ante.

Exch. 500; 18 L. J., Ex. 151.

Pointer, 5 Munf. 287; The Monte Allegre, 9 Wheat. 694; Worthy v. Johnson, 8 Geo. 236; Hensley v. Baker, 10 Mo. 157; Bostick v. Winton, 1 Sneed. 525; Morgan v. Tencher, 1 Blackf. 10; 1 Parsons on Contracts, 594.

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