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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."
§ 1795. When right of action accrues.
“ There is no doubt,” said Nelson, C. J., in a leading case in New York,) 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), 74 389; Rowland v. Shelton (1854), 25 Minn. 90, 76 N. W. R. 1019. In the Ala. 217, and Sedgwick on Damages, court below it was held that the 294. To like effect: Marlatt v. Clary price paid furnished the measure. (1859), 20 Ark, 251; Brown v. Pierce The supreme court said: “We call (1867), 97 Mass. 46, 93 Am. Dec. 57. attention to the fact that in a num- See also Brown v. Wood (1866), 43 ber of the text books on the subject Tenn. (3 Cold.) 182. In Dabovick v. of damages the rule adopted by the Emeric (1859), 12 Cal. 171, the damtrial court is laid down, and cases ages for breach of warranty of title cited in support of it. An examina- to growing fruit sold were allowed tion of these cases will show that, as for a breach of failure to furnish with two or three exceptions, they a chattel, do not sustain the rule, and quite a 3 Case v. Hall (1840), 24 Wend. 102, number are authority for what we 35 Am. Dec. 605 (citing Cross v. believe to be the only just doctrine." Gardner, 1 Show. 68; Dale's Case, Close v. Crossland, 47 Minn. 500, 50 Cro. Eliz. 44; Medina v. Stoughton, N. W. R. 694, was cited as in accord. 1 Salk. 210; S. C., 1 Ld. Raym. 593;
2 This rule is strongly supported in Selw. N. P. 482, 483, and cases; Hoffman v. Chamberlain (1885), 40 N. Springwell v. Allen, in note to WillJ. Eq. 663, 5 Atl. R. 150, Mechem's iamson v. Allison, 2 East, 448, n.; Cases on Damages, 250, citing Grose Ross on Vendors, 334]. v. Hennessey (1866), 13 Allen (Mass.),
has in some way been disturbed by reason of the paramount title; 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. That seems, however, to be the prevailing rule. Thus in a late case* it is
1 Gross v. Kierski (1871), 41 Cal. 111. vendee of personal property against
2 Gross v. Kierski, supra, citing the his vendor for a breach of warranty following Kentucky cases: Payne v. of title, only damages for actual loss Rodden, 4 Bibb, 304; Scott v. Scott, can be recovered. The plaintiff in 2 A. K. Marsh. 217; Chancellor v. such an action must not only estabWiggins, 4 B. Mon. 201; Tipton v. lish that his vendor is without title Triplett, 1 Metc. 570.
to the property sold, and that an3 Thus in Perkins v. Whelan (1875), other is the true owner, but also that 116 Mass. 542, it is held that an ac he has restored the property to such tion for breach of the warranty of owner; that it has been taken from title implied in the sale of a chattel him under compulsory proceedings, accrues at the time of the sale, and or that he has parted with money or statute of limitations runs from that property in consequence of a judg. time. To like effect: Scott v. Scott's ment obtained against him, or vo!. Adm'r (1820), 2 A. K. Marsh. (Ky.) untarily in answer to a claim made 217. In Wood v. Cavin (1858), 38 for the property. O'Brien v. Jones, Tenn. (1 Head), 506, while the court 91 N. Y. 193. In Harris v. Rowland, say that the warranty was broken 23 Ala. 644, the property sold had when made, it is also said that the been recovered on the adverse title. statute of limitation began to run No such state of facts is shown by from the time of dispossession. the second plea in this case. It is
4 Hull v. Caldwell (1893), 3 S. Dak, not a verred that the defendants have 451, 51 N. W. R. 100. That the buyer, in any way been disturbed in their in order to recover damages or de- possession of the property. If that feat recovery of the price, must show possession remains undisturbed, their that he has been dispossessed by or title will be perfected by lapse of has yielded to the paramount title, time. If a paramount title is assee Burt v. Dewey (1869), 40 N. Y. serted, the plaintiffs may settle with 283, 100 Am. Dec. 482; O'Brien v. the adverse claimant, or they will be Jones (1883), 91 N. Y. 193; Gross v. answerable in damages on their war. Kierski (1871), 41 Cal. 111; Wanser v. ranty of title, if the defendants shall Messler (1861), 29 N. J. L. 256; Linton be required to deliver up the propv. Porter (1863), 31 Ill. 107; Krumv. erty in response to a claim by one haar v. Birch (1877), 83 Pa. St. 426; who may prove to be the true owner. Close v. Crossland (1891), 47 Minn. So long as the vendee of personal 500, 50 N. W. R. 694.
property remains in undisturbed posIn Johnson v. Oehmig (1891), 95 session, he cannot recover damages Ala. 189, 10 S. R. 657, 36 Am. St. R. in an action on an implied warranty 204, it is said: “In an action by a of title, or set up the want of title in
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. for the purchase-money, unless there Dewey, 40 N. Y. 282, 100 Am. Dec. were fraudulent representations 482, and note; 2 Benjamin on Sales made by the vendor in regard to the (Corbin's ed.), secs. 948 and 1347, and title. Such a vendee in peaceable notes. There was no error in suspossession has nothing substantial to taining the demurrer to the second complain of in the fact that the vendor plea." was not the true owner of the prop
1 Case v. Hall, supra. erty. When nothing more is shown 2 Bordwell v. Collie (1871), 45 N. Y. than that he may suffer loss in the fu- 494. See also O'Brien v. Jones (1883), ture, in consequence of the outstand- 91 N. Y. 193. ing claim to the property, he must 3 Citing Greenvault v. Davis, 4 rely upon his war
arranty, and he can- Hill (N. Y.), 643; St. John v. Palmer, not sue thereon until he has suffered 5 Hill, 599. See also Matheny v. damages because of its breach. Case Mason (1881), 73 Mo. 677, 39 Am. R. v. Hall, 24 Wend. 102, 35 Am. Dec. 541. 605, and nota; Sumner v. Gray, 4
ranty, express or implied, upon a sale of personal property are within the same principle in this respect and require the application of the same rule. To hold that a purchaser of personal property must become a wrong-doer by withholding it from the true owner, and compel him to resort to an action for its recovery, to entitle him to redress for a breach of warranty of title, would be absurd. Such a rule cannot be supported by reason or sound policy.” 1
$ 1797. Warranty broken by incumbrances. The warranty of title which the law implies is, as has been seen,' a warranty of the whole title and protects the purchaser against liens and incumbrances. The mere existence of such an incumbrance, therefore, constitutes a technical breach for which nominal damages may be recovered,' and if the buyer has been dispossessed by it, or has removed it reasonably and in good faith,' he may recover actual damage. If the incumbrance be permanent, a recovery to the extent of the actual injury may be had.?
$ 1798. -Evidence of eviction - Judgment - Costs of suit.— Although, as has been seen, the purchaser is not bound to wait for an action at law against him, the fact that he has been compelled to yield to a paramount title may be shown in many cases by the judgment recovered against him. If the purchaser, or any subsequent vendee, is sued in replevin or trover, or in any other action involving the question of title, if he gives notice to his vendor of the pendency of the action
1 To like effect: McGiffin v. Baird 941, 17 L R. A. 545; Sargent v. Cur (1875), 62 N. Y. 329; Read v. Slaton rier (1870), 49 N. H. 310, 6 Am. R. 524 (1816), 3 Hayw. (Tenn.) 159, 9 Am. 4 Close v. Crossland, supra. Dec. 740.
5 He must not of course pay an iD2 Ante, S 1304,
reasonable or unnecessary amouni. 3 Close v. Crossland (1891), 47 Minn. Guthrie v. Russell (1877). 46 lowa, 500, 50 N. W. R. 694; Hall v. Aitkin 269, Mechem's Cases on Damages, (1889), 25 Neb. 360, 41 N. W. R. 192; 298. Hickman v. Dill (1889), 39 Mo. App. 6 Sargent v. Currier; Close v. Cross 246; Dresser v. Ainsworth (1850), 9 land and other cases, supra. Barb. (N. Y.) 619; Hodges v. Wilkin- 7 2 Sutherland on Damages, 326 son (1892), 111 N. C. 56, 15 S. E. R. 8 Ante, g 1796.
and its nature, the judgment is conclusive evidence against such vendor. If no notice is given, it is not conclusive on him, but he may show that the plaintiff, in a suit against him on his warranty, ought not to recover the amount he has paid, because the case was not properly defended, and judgment was suffered unnecessarily."
In addition to his other damages, the buyer, who has given his vendor notice of the action to enforce the paramount title, and an opportunity to defend it, may recover not only the costs paid to the successful party, but also, usually, the necessary costs of his defense, including, it is held, his attorney's fees.
c. Where Goods Defective in Kind, Quality or Condition.
$ 1799. In general,- The question of the remedies of the buyer where goods sold and delivered prove defective in kind, quality or condition presents a variety of aspects. There may have been no warranty; there may have been a warranty express or implied; the sale may have been induced by fraud; the vendee may have sought to protect himself by express stipulations as to his rights or remedies if the goods proved to be defective. A detailed examination of certain of these aspects is necessary
1 Thurston v. Spratt (1863), 52 Me. 2 Armstrong v. Percy (1830), 5 202 [citing French v. Parish, 14 N. H. Wend. (N. Y.) 535; ante, ş 1769. 496; Duffield v. Scott, 3 D. & E. 210; 3 Rowland v. Shelton (1854), 25 Ala. Blasdale v. Babcock, 1 Johns. (N. Y.) 217; Johnson v. Meyers (1863), 34 Mo. 517; Weld v. Nichols, 17 Pick. 538; 255; Marlatt v. Clary (1859), 20 Ark. Kipp v. Bingham, 6 Johns. (N. Y.! 251. 157]. Accord, where there was no- 4 Balte v. Bedemiller (1900), tice and opporiunity to defend: Ry- Oreg. 60 Pac. R. 601. See also erson v. Chapman (1877), 66 Me. 557; Harding v. Larkin (1866), 41 III. 413; Barney v. Dewey (1816), 13 Johns. Thurston v. Spratt (1863), 52 Me. 202; (N. Y.) 224, 7 Am. Dec. 372; but not Ryerson v. Chapman (1877), 66 Me. otherwise: Buchanan v. Kauffman 557; Allis v. Nininger (1879), 25 Minn. (1885)65 Tex. 235; Fallon v. Murray 525. Contra: Reggio v. Braggiotti (1852), 16 Mo. 168; Clements v. Col. (1851), 7 Cush. (Mass.) 166; Clark v. lins (1877), 59 Ga. 124; Salle v. Light Mumford (1884), 62 Tex. 531. (1813), 4 Ala. 700, 39 Am. Dec. 317.