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."

992

§ 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; 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

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."

cases.

§ 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 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

3

his vendor as a defense to an action for the purchase-money, unless there were fraudulent representations made by the vendor in regard to the title. Such a vendee in peaceable possession has nothing substantial to complain of in the fact that the vendor was not the true owner of the property. When nothing more is shown than that he may suffer loss in the future, in consequence of the outstanding claim to the property, he must rely upon his warranty, and he cannot sue thereon until he has suffered damages because of its breach. Case v. Hall, 24 Wend. 102, 35 Am. Dec. 605, and note; Sumner v. Gray, 4

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.

ranty, express or implied, upon a sale of personal property are within the same principle in this respect and require the ap plication 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."

§ 1797. Warranty broken by incumbrances.-The warranty of title which the law implies is, as has been seen,1a 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

To like effect: McGiffin v. Baird (1875), 62 N. Y. 329; Read v. Slaton (1816), 3 Hayw. (Tenn.) 159, 9 Am. Dec. 740.

2 Ante, § 1304.

3 Close v. Crossland (1891), 47 Minn. 500, 50 N. W. R. 694; Hall v. Aitkin (1889), 25 Neb. 360, 41 N. W. R. 192; Hickman v. Dill (1889), 39 Mo. App. 246; Dresser v. Ainsworth (1850), 9 Barb. (N. Y.) 619; Hodges v. Wilkinson (1892), 111 N. C. 56, 15 S. E. R.

941, 17 L. R. A. 545; Sargent v. Cur rier (1870), 49 N. H. 310, 6 Am. R. 524 4 Close v. Crossland, supra.

5 He must not of course pay an пDreasonable or unnecessary amount. Guthrie v. Russell (1877), 46 Iowa, 269, Mechem's Cases on Damages, 298.

6 Sargent v. Currier; Close v. Cross land and other cases, supra. 72 Sutherland on Damages, 326. 8 Ante, § 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."1

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. 202 [citing French v. Parish, 14 N. H. 496; Duffield v. Scott, 3 D. & E. 210; Blasdale v. Babcock, 1 Johns. (N. Y.) 517; Weld v. Nichols, 17 Pick. 538; Kipp v. Bingham, 6 Johns. (N. Y.) 157]. Accord, where there was notice and opportunity to defend: Ry. erson v. Chapman (1877), 66 Me. 557; Barney v. Dewey (1816), 13 Johns. (N. Y.) 224,7 Am. Dec. 372; but not otherwise: Buchanan v. Kauffman (1885). 65 Tex. 235; Fallon v. Murray (1852), 16 Mo. 168; Clements v. Colfins (1877), 59 Ga. 124; Salle v. Light (1843), 4 Ala. 700, 39 Am. Dec. 317.

2 Armstrong v. Percy (1830), 5 Wend. (N. Y.) 535; ante, § 1769.

3 Rowland v. Shelton (1854), 25 Ala. 217; Johnson v. Meyers (1863), 34 Mo. 255; Marlatt v. Clary (1859), 20 Ark. 251.

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4 Balte v. Bedemiller (1900), Oreg. 60 Pac. R. 601. See also Harding v. Larkin (1866), 41 Ill. 413; Thurston v. Spratt (1863), 52 Me. 202; Ryerson v. Chapman (1877), 66 Me. 557; Allis v. Nininger (1879), 25 Minn. 525. Contra: Reggio v. Braggiotti (1851), 7 Cush. (Mass.) 166; Clark v. Mumford (1884), 62 Tex. 531.