61 Iowa 430 | Iowa | 1883
— I. The petition alleges that plaintiff purchased from defendant certain interest coupons, cut from bonds issued by the “ Inhabitants of the Town of Glenwood, in the County of Schuyler, State of Missouri,” upon representations of their validity, which induced their purchase. In a proceeding of quo warranto subsequently prosecuted against the trustees of the town, a judgment of ouster against them was
There was evidence introduced by plaintiff tending to show facts and representations which, it is claimed, establish a warranty by defendant of the validity of the coupons.
A prior instruction is as follows: “ To constitute a warranty, it is not necessary to use the word ‘warrant/ but the jury are to say from all the facts and circumstances in evidence whether the words actually used import an undertaking, on the part of the owner or his authorized agent that the thing sold was what it purported to be.
“ Such an undertaking, when made and relied upon by the purchaser, is as much a warranty as if the w7ord warrant should' be used.”
Counsel for defendant insist that these instructions are erroneous, for the reason that they leave out the element of the intention of the parties to make a contract warranting
A rule directing the determination of the question of the existence'of a warranty is stated in this language: “An assertion or affirmation of quality, made by the owner during a negotiation for the sale of a chattel, which it may be-supposed was intended to cause the sale, and was operative in Causing it, will be regarded either as implying or as constituting a warranty.” Carter v. Abbott, 33 Iowa, 180; Callanan v. Brown, 31 Iowa, 333.
■ It will be observed that the first of the instructions above copied leaves out of view the element of intention on the part of the seller, and holds that, if the representations were relied upon by the buyer, and were operative in causing the' sale, they are evidence upon which a warranty may be found. But it is plain that the conditions contemplated, i'. e. reliance upon the representations, and their .effect to cause the sale, may exist without any intention on the part of the vendor to' make affirmations or representations of the quality- of the goods sold which would'cause the sale. The instruction first quoted is, therefore, in conflict with both of the rules just stated. '
The quo warranto action determined the invalidity of the coupons. It was prosecuted by the state, and the judgment determined that the town was not a lawful corporation.
The defendant was bound by the action, or, more correctly speaking, the judgment operated-to make invalid all the acts of the pretended corporation against the whole world.
But if, in the exercise of reasonable diligence, plaintiff, at any time before the judgment in the quo warranto case, could have collected the coupons, it was his duty to do so, and if they could have been collected in the exercise of reasonable
Reversed.