Gilchrist v. Hilliard

53 Vt. 592 | Vt. | 1880

The opinion of the court was delivered by

Royce, J.

The accounts that the defendant sold and assigned to the plaintiff were, for all but $15, worthless at the time of the sale ; not on account of the insolvency of the parties that they were represented to be against, but for the reason that the defendant had no valid accounts against the persons whose names appeared as his debtors upon the list of .accounts assigned.

In Long on Sales, 204, it is said that there is an implied warranty in every sale that the thing sold is that for which it was sold, or answers substantially to that description or representation. In Bank of St. Albans v. Farmers & Mechanics’ Bank, 10 Vt. 145, the court say, that: “ it seems now well settled that a person giving a security in payment, or procuring it to be discounted, vouches for its genuineness.” In Thrall v. Newell, 19 Vt. 202, which was an action upon an alleged warranty that a note which had been transferred to the plaintiff was a good and valid note, and alleging that one of the makers had recovered a judgment in a suit upon the note, upon the ground of his insanity at the time he signed it, although an express warranty was found, and a recovery had upon that ground, the court strongly intimate that a recovery might have been had upon an implied warranty. They say, that if one or both of the signatures to the note disposed of by the defendant had been forgeries, there would seem to be no question but that the defendant would be liable on an implied warranty. If the law would imply a warranty in such a case, why would not the same implication be made upon the sale of a fictitious chose in action ? Here the accounts sold had no existence. The contingency upon which they were to become valid never happened, and the defendant was boiind to make them what they appeared to be, — accounts, due and owing. He was not relieved from liability to that extent by anything that appears to have transpired between the parties and Gleason. If the liability of the defendant were dependent upon the question of fraud in the sale, it might merit a different consideration. Upon the case as presented, the defendant is liable upon an implied warranty.

The damages not having been certainly assessed in the County Court, so that a final judgment can be rendered, the judgment is reversed and cause remanded.