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-Who May Sue.—The warranty is personal to the buyer. That is to say, it does not run with the ownership of the chattel, and the second buyer can not sue the original warrantor for the breach.105

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through defects in the warranted chattel. In Weston V. B. & M. R. R. Co., 190 Mass. 298, the loss of probable profits was allowed as damage.

For breach of warranty of seeds, the buyer was allowed the difference between the value of the crop actually produced and the value of such a crop as would ordinarily have been produced had the seeds been as warranted, Ford v. Farmer's Exch., 136 Tenn. 287, 189 S. W. 368; Passenger v. Thor. burn, 35 Barb. (N. Y.) 17; Schutt V. Baker, 9 Hun. (N. Y.) 536; Flick V. Wetherbee, 20 Wis. 392. Other cases have allowed the cost of preparing the soil and the loss of use of the land to be added to the cost price of the seed as damage, Reiger v. Worth, 127 N. C. 230; Butler v. Moore, 68 Ga. 780; Ferris V. Comstock, 33 Conn. 513; Vaughan's Seed Store v. Stringfel. low, 56 Fla. 708; Phelps v. Elyria Milling Co., 12 Ohio Dec. 695.

In Campbell Co. v. Thorp, 36 Fed. 414, it was said that the monetary difference between chattel warranted "satisfactory". and one which was “reasonably good" could not be estimated.

For breach of warranty of title, the purchase price with interest and possibly the cost of attempting to defend title, is allowed. Smith v. Williams, 117 Ga. 783.

105—Thisler V. Keith, 7 Kan. Ap. 363; Smith v. Williams, 117 Ga. 782; Nelson v. Armour Packing Co., 76 Ark. 352, 6 Ann. Cas. 237; Tomlinson v. Armour Pack

ing Co., 75 N. J. L. 748; Roberts

Anheuser Busch Assn., 211 Mass. 449; Prater v. Campbell, 110 Ky. 23; Crigger v. Coca Cola Bot. Wks., 132 Tenn. 545.

Nor can one not in privity take advantage of it, Gearing v. Berkson, 223 Mass. 257.

There is a growing tendency of late to hold that the warranty does run with the ownership of the goods in cases of the sale of food. If the warrantor's liability were truly one of contract these decisions would be utterly illogi. cal, but since in reality the lia. bility has become one imposed by law, regardless of intent, it is merely a question of how far the policy of the courts will go. Held that the liability of the manufac. turer-seller does run with the own. ership, Mazetti v. Armour & Co., 75 Wash. 622, 48 L. R. A. (n. s.) 213; Ward v. Morehead City Sea Food Co., 171 N. C. 33; Catani v. Swift & Co., 251 Pa. 52; Davis v. Van Camp Packing Co., 176 N. W. 382; dissenting opinion in Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40; but cf. Wel. shausen v. Parker Co., 83 Conn. 231, “There must have been evi. dence of a contract between the parties, for without a contract there could be no warranty."

Attention is called to the fact that the judicial tendency to hold a manufacturer of food absolutely responsible for its wholesomeness is not restricted to the theory of implied warranty, but can also be taken advantage of by an action

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in tort, for negligence. There is marked tendency in such cases to hold the manufacturer liable as insurer, on the fiction of negligence whether there is any evi. dence of negligence in fact or not. On this theory, suit can be maintained by any one who is injured by the unwholesome product. See

18 Mich. Law Rev. 316; 18 Mich. Law Rev. 436.

But even in such cases, many courts hold to the rule that a third person injured by unwholesome food sold can not recover on warranty-as distinct from tort for negligence-unless the buyer was the plaintiff's agent. Gearing v. Berkson, 223 Mass. 257.

CHAPTER V

REMEDIES AND RIGHTS OF THIRD PERSONS

In discussing the rights of buyers and sellers we have heretofore assumed that the seller was the absolute owner of the goods whose title he had undertaken to transfer. But it occasionally happens that one sells, or attempts to sell, goods of which he is not owner, or which he otherwise has no legal power to transfer. In such case the rights of his buyer may be subject to those of someone who was not a party to the contract of sale. It is the rights of such persons, between whom there is no contract relation, that are now to be discussed.

1. PURCHASERS FROM A PERSON IN POSSESSION, BUT WITH

OUT TITLE

The foundation on which all these rights are based is the general principle that one can not be deprived of ownership without his consent. A seller, therefore, who has no title himself can not pass a title to the buyer so as to affect the rights of the real owner-except as the broad principle has been modified in one respect or another.

In General.—The commonest case in which the question arises, is where one buys for value from another who is in possession of the goods and whom the buyer believes in good faith to be the owner, but who in fact is not the owner. Even in such case, although the seller may have been lawfully in possession, though there may have been nothing peculiar to warn the buyer that he was not owner, and though the buyer may have parted with money which he can not practically recover, nevertheless the buyer's rights in the property are subordinate to those of the real owner, if the sale was made without the latter's consent.*

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Thus, as illustration, A employed B to buy seed for him and in his, A's, name to lend it to farmers. B was to pay for the seed with A's money, and it was definitely understood between them that it was to be A's property as purchased. B, while in possession of some of this seed, sold it to C. The latter knew nothing of the agreement between A and B, and honestly assumed from B's possession that he was the owner. A sued C in trover for the seed and got judgment, the court holding that B's mere possession of the seed with A's consent was not enough to preclude A from setting up his title."

Even though the person in possession has actual authority to sell to some particular person, it has been held that another person who lends money on his apparent ownership is not protected.2

1-Gilman Oil Co. v. Norton, 89 Ill. 434, citing other authority; Edwards v. Dooley, 120 N. Y. 540; Oliver Ditson Co. v. Bates, 181 Mass. 455, plaintiff, a wholesale dealer in pianos, leased an instrument to B, "a dealer in musical instruments." B, while in possession, sold to defendant who supposed him to be owner, or at least to have the right to sell. Plaintiff sued for conversion and it was held that the written lease rebutted any pretense of agency on B's part and that the buyer was not otherwise protected. Milner & K. Co. v. DeLoach Mill Co., 139 Ala. 645, 101 Am. St. 63, purchaser at sheriff's sale of goods in judg. ment debtor's possession not protected; Tobin v. Portland Mills Co., 41 Ore. 269, owners in common of grain stored in warehouse allowed to recover from purchas

er from warehouseman; Tuttle v. White, 46 Mich. 485; Ladd v. Brewer, 17 Kan. 204, buyer of horse from one in charge of livery stable not protected; Klein v. Siebold, 89 Ill. 540, sale, while in possession, by husband of owner; Baker v. Taylor, 54 Minn. 71; McGinley v. Betchel, 4 Neb. Un., 552, 95 N. W. 32; Staples v. Bradbury, 8 Me. 181, 23 Am. Dec. 494; Thacher v. Moors, 134 Mass. 156; Collins v. Ralli, 20 Hun. (N. Y.) 246; Albany Warehouse Co. v. Fiske Cot. ton Co., 16 Ala Ap, 256, 76 So. 988; Prentice v. Page, 164 Mass. 276; Velsian v. Lewis, 15 Ore. 539, 3 Am. St. Rep. 184, citing much authority; A. F. T. Corp. v. Pathe Exch., 172 N. Y. S. 364, an extreme case; Barrow V. Brent, 202 Ala. 650, 81 So. 669; Yates v. Russell, 20 Ariz, 338, 180 Pac. 910; O'Neil v. Thompson, 152 Mich. 396.

*See Uniform Sales Act, Section 23, (1), (2), 76, "Goods".

Even the fact that the person in possession has authority to find customers for the goods does not protect one who buys from him, believing he has power to

sell.8

Not even when the character of the goods has been changed by the possessor can he pass title to a purchaser, unless, of course, his change in the goods has been such as, by rules of title, vests title in himself, regardless of the owner's consent.4

The so-called rule, that “where one of two innocent parties must suffer from the fraud of a third, the loss will fall on him whose fault enabled the fraud to be committed”, is often invoked in these cases. But, as a rule for decision, it is meaningless, since it still leaves to be decided the question as to whose fault enabled the fraud to be perpetrated. Was it the owner's fault in entrusting the goods to the one who fraudulently disposed of them? Or was it the fault of the buyer in purchasing from one of whose title he was not absolutely sure? In answering this, the issue of title is decided at once without help from the “rule.” But, so far as the "rule” is concerned, the cases say specifically that the fault is the buyer's, and therefore, according to the "rule,” the loss must fall on him.5

2-Prentice v. Page, 164 Mass. 276.

3—Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332, even though the person in possession was a trader in such goods. Thacher V. Moors, 134 Mass. 156.

4-Strubbee v. Trustees, 78 Ky. 481.

5—Velsian V. Lewis, 15 Ore. 539, 3 Am. St. Rep. 184, “at first blush, it may seem strange that one who takes possession of goods or chattels under a contract of

purchase, from one who has no right to sell, should be treated as a wrong doer; but the explanation of the principle lies in the common-law maxim caveat emptor, which applies to the transfer of personal property. It is the buyer's own fault, if he is so negligent as not to ascertain the right of the vendor to sell, and he can not successfully invoke his bona fides to protect himself from liability to the true owner, who can only be divested of his rights or

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