33 Wis. 617 | Wis. | 1873
The action is to recover damages for the breach of an express warranty that Halloway-was an indorser of the note, that proper steps had been taken to charge him as such,- and that he was bound and legally liable in that capacity at the time of the transfer of the note by the defendant to
The suit being thus upon an express warranty, the question is presented, whether a recovery can be had for the breach of one which was implied, the express warranty being in whole or in part unproved, but the facts shown being such as to establish an implied one of the same effect as that which is alleged to have been expressly made. We are inclined to think that in such case the variance should be disregarded, or an immediate amendment allowed, if objection is taken on the trial. See Leopold v. Van Kirk, 27 Wis., 155 ; Same v. Same, 29 id., 549, 556. In this case, the alleged express warranty was in part unproved, and we think the court was right in allowing
And with respect to the question of irñplied warranty, we are of opinion that the circuit court was correct in the general principle laid down in the instructions. It has sometimes been
But tbougb we think the learned judge wbo presided at tbe trial was so- far right in his conclusions, we are, notwithstanding, of opinion that he was in some other respects wrong, both in the instructions given and in the requests to charge refused, as well as in the exclusion of evidence.
To speak first of the evidence which was improperly excluded, it seems very clear to our minds that the testimony offered for the purpose of showing the insolvency of Halloway should have been received. It was admissible, if the insolvency was established, to reduce the damages which the plaintiff would otherwise be entitled to recover. The value of a chose in action, like a note or other promise or obligation in writing for the payment of money, is intrinsically nothing. It cannot be estimated as we estimate that of a horse, an acre of land, or other article of visible, tangible property. Its value depends on the pecuniary condition, or ability to pay, of the parties liable thereon; and hence the proper inquiry, where the value is in controversy, always is, Are the parties to it solvent and able to pay their debts ? The value of the note here, or rather of Halloway’s indorsement upon it, supposing such in-dorsement to have been valid, is dependent on his solvency or pecuniary ability to pay the sum for which it was given ; and such value was in controversy, and the proper subject of investigation, because therein consisted the loss or damage sustained by Bishop, or the plaintiff as his assignee, in consequence of the contract of indorsement being void on the ground of usury. If Halloway then was and still is pecuniarily worthless, so that he could pay nothing, and nothing could then have been or now be collected from him in satisfaction of the note, then it is clear that neither Bishop nor the plaintiff as his assignee has lost anything by reason of the invalidity of the indorsement, save only the costs and expenses incurred by the plaintiff in his action against Halloway to charge him as indorser, or to
In an action for breach of warranty on a contract of sale of chattels, the measure of damages is tbe difference between the value of tbe chattels, if they had corresponded with the war
For convenience in judicial proceedings, it is a presumption generally indulged, that the maker of a promise or obligation is pecuniarily responsible and able to fulfill his promise or agreement. It has been said that insolvency is never presumed, but that an ability to meet all his engagements will be presumed in favor of every man. Prima facie, therefore, the value of a note or other contract in writing, the validity or due execution of which is shown, is the amount for which it was given, with interest; from which it follows that the burden of proving the insolvency of the maker or person otherwise liable thereon, rests on the party placing his defense on that ground. This presumption has most frequently been indulged in the action of trover, where the property sued for was a chose in action, as a bill, note, bond or other security for the payment of money
And the rule of damages above laid down, if not sanctioned by any direct adjudication, is at least sustained by numerous decisions in other very similar cases. It is the rule which obtains in actions of trover for the conversion of choses in action, as notes, bills, bonds and the like, and in other kindred actions. Sedgwick on the Measure of Damages (4th ed.), 569, and authorities cited; Sherman v. Johnson, Thrall v. Newell, and Coolidge v. Brigham, cited above; Neff v. Clute, 12 Barb., 466; Walrod v. Ball, 9 id., 271; Potter v. Merchants' Bank, 28 N. Y., 641; Jansen v. Ball, 6 Cow., 628; Patterson v. Westervelt, 17 Wend., 543; Kellogg v. Manro, 9 Johns., 300. In Coolidge v. Brigham, where, upon the sale of goods by the plaintiff to the defendant, the latter delivered a note with a forged indorsement, the court said: “ The plaintiff was at liberty either to restore the note to the defendant, or to retain it and resort to his action on the warranty. In the latter case, the measure of damages will be the difference between the amount of the note and its actual value, whatever that may be.”
And in the present case, the note remaining uncollected against the'makers, the measure of damages will be the difference between the actual value of the note without the indorsement of Halloway, and what its value would be if it had been so validly indorsed, together with the reasonable costs and expenses incurred by the plaintiff in his attempted collection of it in the suit against Halloway. It was ruled, and as we think correctly, in j ust such a case, Delaware Bank v. Jarvis, ubi supra, that the party accepting the transfer of a chose in action is at
Tbe defendant requested tbe court to instruct the jury as follows : “ That if tbe jury find from tbe evidence that on the sale and transfer of tbe note in question from West to Bishop, Bishop asked of 'West to warrant tbe note, on the ground that Halloway was holden to him as indorser, and that West replied and said it was doubtful whether he was holden, and refused to warrant the note, in such case there was no implied warranty that Halloway was holden as indorser.” The court refused to grant the request, for the reason, as stated, that there was no evidence to authorize it, and said to the jury: “I judge that the meaning of the defendant was, that he was asked to indorse the note generally, and not to warrant that the note was not void for usury.”
From the evidence as reported to us (and the bill of exceptions is certified to contain it all), we can not resist the conclusion that the court was wrong, both in the refusal to instruct as requested, and in the remarks subsequently made to the jury. We can not understand the testimony of the defendant as the learned judge did ; and although such testimony was in some respects contradicted by that of the plaintiff and of Bishop, yet it was quite sufficient to justify the request to instruct which was made, and to take the case to the jury upon the proposition of fact involved in, or which was assumed as the basis of, such request. The testimony was such as to forbid the court from withholding it from the consideration of the jury, whose duty it was, under the circumstances, not only to construe it, but to decide upon its weight and credibility, and thus to settle the question of fact as between the different and somewhat conflicting statements of the several witnesses.
We see no other errors in the trial and proceedings; but for these the judgment must be reversed, and a new trial awarded.
By the Court. —It is so ordered.