§ 1791. Other damages than for the loss of use alone" may, of course, in many cases be recovered under the second branch of the rule in Hadley v. Baxendale. Thus, for example, where the goods are known to be purchased for resale and the resales are lost by reason of the delay, recovery may be had for the profits that would have been made upon resales contracted for in reliance upon receiving the goods within the stipulated time; and even if no profit could be shown, the vendee would be entitled to damages for expenses incurred by him in good faith in anticipation of performance by the seller.1 § 1792. —. So where, as the natural and proximate result of the delay, the buyer is deprived of the profitable use of his property, as where the seller made default in supplying a new hotel with furniture at the time agreed, where he knew that such was the intended use, damages based upon this special loss may be recovered. For like reasons, injuries to a farmer's crop caused by exposure to the weather while he was waiting for a threshing machine upon the seller's promise to furnish it forthwith, may be compensated, where the buyer could procure no other machine." b. Where Title Fails in Whole or in Part. § 1793. Recovery of consideration. It is a fundamental condition, as has been seen,' that the seller shall be the owner of that which he attempts to convey. If, therefore, he tenders a chattel to which the buyer knows he has no title, the buyer may reject it, and may recover the price if he has paid 1 Harrow Spring Co. v. Whipple Harrow Co. (1892), 90 Mich. 147, 51 N. W. R. 197, 30 Am. St. R. 421. See also Horne v. Midland Ry. Co. (1872), L. R. 7 C. P. 583, Mechem's Cases on Damages, 124; Booth v. Rolling Mill Co. (1875), 60 N. Y. 487, Mechem's Cases on Damages, 132. 2 Berkey & Gay Furniture Co. v. Hascall (1890), 123 Ind. 502, 24 N. E. R. 336, 8 L. R. A. 65, Mechem's Cases, 252. 3 Smeed v. Foord (1859), 1 Ell. & Ell. 602, 102 Eng. Com. L. 600. See also Goodloe v. Rogers (1855), 10 La. Ann. 631; Benton v. Fay (1872), 64 Ill. 417. Compare Prosser v. Jones (1875), 41 Iowa, 674. Other cases are cited § 1773, ante. 4 See ante, § 1205. it in advance. So if, after the delivery of the goods and the payment of the price, the buyer is divested by or surrenders to a superior title, there is likewise a breach of the fundamental condition of the sale,- the seller has ignored the contract on his part, and the buyer may treat it as a sufficient ground for the rescission of the contract on his own part. Acting, therefore, in disaffirmance of the contract, the buyer may recover, as paid without consideration, so much of the purchase price as he has paid to the seller, with interest.1 § 1794. Damages for breach of warranty of title.- As has been seen, however, this fundamental condition on the part of the seller to convey the title is treated not only as a condition but as a warranty; and the buyer, instead of treating the seller's failure in this regard as a ground for disaffirmance of the contract, may recover damages for the breach of warranty. What the measure of damages for the breach of warranty of title should be seems to be involved in some confusion. Certain of the cases, acting in analogy to the rule generally pre vailing in regard to real estate, declare the rule to be that the buyer shall recover the consideration paid with interest.3 Other cases declare, in the language of one of the most re 1 See ante, § 838; Wilkinson v. Ferree (1855), 24 Pa. St. 190; Ledwich v. McKim (1873), 53 N. Y. 307; Eicholtz v. Bannister (1864), 17 Com. B. (N. S.) 708. 2 See ante, § 1300 et seq. 3 Crittenden v. Posey (1858), 38 Tenn. (1 Head), 311; Johnson v. Meyers (1863), 34 Mo. 255; Ellis v. Gosney (1832), 7 J. J. Marsh. (Ky.) 109; Anding v. Perkins (1867), 29 Tex. 348; Goss v. Dysant (1868), 31 Tex. 186; Armstrong v. Percy (1830), 5 Wend. (N. Y.) 535; Noel v. Wheatly (1855), 30 Miss. 181; Ware v. Wheatnall (1823), 2 McCord (S. C.), 413; Arthur v. Moss, 1 Oreg. 193. Partial breach. For a partial failure of title, the buyer may re cover such a portion of the whole price as the value of the part lost bears to the value of the whole, estimated at the price paid. Moorehead v. Davis (1883), 92 Ind. 303 [citing Wiley v. Howard, 15 Ind. 169; Hoot v. Spade, 20 Ind. 326; First Nat. Bank v. Colter, 61 Ind. 153; Mooney v. Burchard, 84 Ind. 285]. Where two mules and a colt were sold for a lump sum, and the purchaser lost the colt by paramount title, held, that he could recover the value of the colt at the time he so lost it, although no separate price had been fixed for it. Brown v. Woods (1866), 43 Tenn. (3 Cold.) 182. See also Hunt v. Sackett (1875), 31 Mich. 18. cent,' that "unless we are to lose sight of the cardinal principle which governs when estimating and awarding damages in civil actions, which is simply compensation to the injured party, the damages are the actual loss, which is the value. of the chattel purchased ... depending on the real value of the chattel when the paramount title was asserted as against the vendee." 2 § 1795. When right of action accrues.- "There is no doubt," said Nelson, C. J., in a leading case in New York,3 that "if the vendor fraudulently represents the goods sold to be his own, when he knows them to belong to a stranger, an action on the case lies to recover damages therefor, though the real owner has not recovered the property, nor the vendee suffered any actual damage." With respect, however, of actions upon the warranty some distinction has been made between the express and the implied warranty. As to the former it is said that the authorities are uniform that there is no breach until the vendee's possession 1 Hendrickson v. Back (1898), 74 Minn. 90, 76 N. W. R. 1019. In the court below it was held that the price paid furnished the measure. The supreme court said: "We call attention to the fact that in a number of the text books on the subject of damages the rule adopted by the trial court is laid down, and cases cited in support of it. An examination of these cases will show that, with two or three exceptions, they do not sustain the rule, and quite a number are authority for what we believe to be the only just doctrine." Close v. Crossland, 47 Minn. 500, 50 N. W. R. 694, was cited as in accord. 2 This rule is strongly supported in Hoffman v. Chamberlain (1885), 40 N. J. Eq. 663, 5 Atl. R. 150, Mechem's Cases on Damages, 250, citing Grose v. Hennessey (1866), 13 Allen (Mass.), 389; Rowland v. Shelton (1854), 25 Ala. 217, and Sedgwick on Damages, 294. To like effect: Marlatt v. Clary (1859), 20 Ark. 251; Brown v. Pierce (1867), 97 Mass. 46, 93 Am. Dec. 57. See also Brown v. Wood (1866), 43 Tenn. (3 Cold.) 182. In Dabovick v. Emeric (1859), 12 Cal. 171, the damages for breach of warranty of title to growing fruit sold were allowed as for a breach of failure to furnish a chattel. 3 Case v. Hall (1840), 24 Wend. 102, 35 Am. Dec. 605 [citing Cross v. Gardner, 1 Show. 68; Dale's Case, Cro. Eliz. 44; Medina v. Stoughton, 1 Salk. 210; s. C., 1 Ld. Raym. 593; Selw. N. P. 482, 483, and cases; Springwell v. Allen, in note to Williamson v. Allison, 2 East, 448, n.; Ross on Vendors, 334]. has in some way been disturbed by reason of the paramount title;1 as to the latter it has been suggested that there was an immediate breach. This distinction has not been generally approved, though the authorities are by no means uniform that actual ouster or surrender is essential in all cases.3 That seems, however, to be the prevailing rule. Thus in a late case it is 1 Gross v. Kierski (1871), 41 Cal. 111. 2 Gross v. Kierski, supra, citing the following Kentucky cases: Payne v. Rodden, 4 Bibb, 304; Scott v. Scott, 2 A. K. Marsh. 217; Chancellor v. Wiggins, 4 B. Mon. 201; Tipton v. Triplett, 1 Metc. 570. 3 Thus in Perkins v. Whelan (1875), 116 Mass. 542, it is held that an ac tion for breach of the warranty of title implied in the sale of a chattel accrues at the time of the sale, and statute of limitations runs from that time. To like effect: Scott v. Scott's Adm'r (1820), 2 A. K. Marsh. (Ky.) 217. In Wood v. Cavin (1858), 38 Tenn. (1 Head), 506, while the court say that the warranty was broken when made, it is also said that the statute of limitation began to run from the time of dispossession. vendee of personal property against his vendor for a breach of warranty ́of title, only damages for actual loss can be recovered. The plaintiff in such an action must not only estab lish that his vendor is without title to the property sold, and that another is the true owner, but also that he has restored the property to such owner; that it has been taken from him under compulsory proceedings, or that he has parted with money or property in consequence of a judg ment obtained against him, or vol untarily in answer to a claim made for the property. O'Brien v. Jones, 91 N. Y. 193. In Harris v. Rowland, 23 Ala. 644, the property sold had been recovered on the adverse title. No such state of facts is shown by the second plea in this case. It is not averred that the defendants have in any way been disturbed in their possession of the property. If that possession remains undisturbed, their title will be perfected by lapse of time. If a paramount title is asserted, the plaintiffs may settle with the adverse claimant, or they will be answerable in damages on their warranty of title, if the defendants shall be required to deliver up the property in response to a claim by one who may prove to be the true owner. So long as the vendee of personal property remains in undisturbed pos session, he cannot recover damages in an action on an implied warranty of title, or set up the want of title in 4 Hull v. Caldwell (1893), 3 S. Dak. 451, 54 N. W. R. 100. That the buyer, in order to recover damages or defeat recovery of the price, must show that he has been dispossessed by or has yielded to the paramount title, see Burt v. Dewey (1869), 40 N. Y. 283, 100 Am. Dec. 482; O'Brien v. Jones (1883), 91 N. Y. 193; Gross v. Kierski (1871), 41 Cal. 111; Wanser v. Messler (1861), 29 N. J. L. 256; Linton v. Porter (1863), 31 Ill. 107; Krumbhaar v. Birch (1877), 83 Pa. St. 426; Close v. Crossland (1891), 47 Minn. 500, 50 N. W. R. 694. In Johnson v. Oehmig (1891), 95 Ala. 189, 10 S. R. 657, 36 Am. St. R. 204, it is said: "In an action by a said: "A vendee, in the case of an executed sale, has no right of action on the implied warranty of title until he is deprived of the possession of the property, and the same principle applies to pleading such warranty as a defense." "Possibly the owner may never claim and enforce his title, or, if he does, the seller may settle with him. The breach implies no bad faith, and, therefore, is compatible with perfect fair dealing between the parties; and the indemnity is complete by responding therefor after a recovery under the paramount title.” § 1796. What constitutes eviction. "The rule in cases of warranty, express or implied," it is further said, " was derived from the analogy to that adopted in cases of covenants of quiet enjoyment in conveyances of real estate. An eviction is an essential prerequisite to a recovery in the latter class of cases. Yet this need not be by process of law. It is enough that on a valid claim made by a third person, under title paramount, the plaintiff voluntarily yielded up possession. If this is done without legal contest, the plaintiff must prove that the title to which he yielded was paramount to that acquired by him under his deed from the defendant. The rule adopted in these cases has been regarded since as the law of the State, and as such applied to like cases. Actions for a breach of war his vendor as a defense to an action Ark. 467, 38 Am. Dec. 39; Burt v. Dewey, 40 N. Y. 282, 100 Am. Dec. 482, and note; 2 Benjamin on Sales (Corbin's ed.), secs. 948 and 1347, and notes. There was no error in sustaining the demurrer to the second plea." 1 Case v. Hall, supra. 2 Bordwell v. Collie (1871), 45 N. Y. 494. See also O'Brien v. Jones (1883), 91 N. Y. 193. 3 Citing Greenvault v. Davis, 4 Hill (N. Y.), 643; St. John v. Palmer, 5 Hill, 599. See also Matheny v. Mason (1881), 73 Mo. 677, 39 Am. R. 541. |