74 Wis. 474 | Wis. | 1889
Were the defendants concluded by the judgment in the foreclosure case on the question as to the payment of the notes which they sold the plaintiff? It is not denied that the defendants had sold these notes to the plaintiff for all that appeared on their face to be due upon them. This being so there was surely a warranty implied in law that they had not been paid: for it is the settled law-in this state that, in the assignment of an instrument or contract in writing, even not negotiable, for a full and fair price, the assignor impliedly warrrants that it is valid, and that the maker is liable upon it, unless it clearly appears that the parties intended to the contrary. It is sufficient to cite, in support of this proposition, the case of Giffert v. West, 33 Wis. 617, where the question is elaborately considered, and this rule of law established.
Now, in respect to the defense which was set up by the
These facts present a very different case from that of Saveland v. Green, 36 Wis. 612, so strongly relied on by the learned counsel for the defendants. There the plaintiff stated in his complaint the proceedings had in the chamber of commerce between him and the charter party, and the action and award of the arbitrators,.and averred that the defendant had due notice of each and every part of these proceedings and award. This court held that the averment of notice in the complaint failed to show that the defendant had any such notice of the proceedings before the board of arbitrators and of the award made by them as was required to render the judgment inter alios binding upon him. An averment of mere notice to the defendant of the pendency of the proceedings was insufficient, -without further showing that the defendant had an opportunity to defend the suit or proceeding against his agent. The rule of law rests upon the obvious and solid ground that one not a party nor in privity with a party to an action
As to the trover action, there is no controversy that the defense of that suit was not seasonably tendered the defendants, but the contention of their counsel is that the defense of the foreclosure action was not tendered them. But, as we have said, the evidence clearly shows that they were present as witnesses at the trial of that suit, subpoenaed witnesses and paid them, and had practically the full control of the cause on the issue of payment of the notes. It does not appear that they were dissatisfied with the attorneys having charge of the case, or that they were prevented from taking any steps in the litigation which they deemed necessary for the protection of their interests. We must therefore hold, upon the facts, that they are bound by the judgment therein.
This brings us to the question as to what items of expenses and costs the plaintiff is entitled to recover. Where a person sells real or personal property with an express or implied warranty of title, and the purchaser finds, upon suit brought, that the validity of his title is denied, he may notify his vendor to maintain the title in the suit so brought; and if a vendor, upon reasonable notice and with a fair opportunity to maintain his rights in the litigation, neglects
Ye likewise think he was entitled to recover the amount paid as attorney’s fees in both suits, if they were reasonable, and it is not claimed they were not. He was certainly responsible for these fees, and he had incurred them by reason of the wrong-doing of the defendants. There is no ground in law or morals for denying him the right' to recover them as a part of the expenses necessarily and properly incurred. Anderson v. Sloane, 72 Wis. 566; Giffert v. West, 33 Wis. 617; Armstrong v. Percy, 5 Wend. 535; Dubois v. Hermance, 56 N. Y. 673; Coolidge v. Brigham, 5 Met. 68; Westfield v. Mayo, 122 Mass. 100. In the latter
By the Court.— It is so ordered.