273 F. 752 | D.D.C. | 1921
Frank H. Harriman, trading under the name and style of the Harrjman Motors Company, the appellant, sold to Frank T. Richardson, the appellee, by a contract of conditional sale under seal, two airplane motors at the price of $3,600, payable $1,000 cash and the remainder in installments. In the face of the contract the purchaser acknowledged the receipt of two airplane motors, of 100 horse power each, but as a matter of fact the motors' were not delivered until some time after the execution of the contract.
The appellant appeared specially, and moved to dismiss the attachment, and also to require the marshal to amend and correct his return upon the attachment, to show that the appellee was in possession of the property attached. Both motions were overruled.
The declaration was in assumpsit on the common counts. The defendant below pleaded the general issues in debt and assumpsit, and issue was found thereon. Appellant again moved to dismiss the attachment, to release the levy, and release the forthcoming bond. All these motions were overruled.
Proof was then offered by each party before the jury, and thereafter appellant moved the court to direct a verdict in his favor, first, because no recovery could be had upon the common counts for breach of warranty of a special contract; second, because no recovery could be had in' an action of assumpsit for breach of warranty under seal. He also renewed his motion to dismiss the attachment and discharge the bond. These motions were overruled. The court charged the jury that the case was one of implied warranty of‘the horse power of the motors, and the jury returned a conditional verdict for the appellee in the sum of $1,000, if the court should be of the opinion that he ought to recover.
The court ordered judgment in favor of the appellee, from which the appellant has appealed.
“When the subject-matter of a sale is not in existence or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities being part of the description of the thing sold becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted [citing authorities].
“So, in a recent case decided by this court, it was said by Mr. Justice Gray: ‘A statement’ in a mercantile contract ‘descriptive of the subject-matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract.’ * * *
“The authorities cited sustain this proposition, that when a vendor sells goods of a specified quality, but not in existence or ascertained, and un*754 clertakes to ship them to a distant buyer, when made or ascertained, and delivers them to the carrier for the-purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract. The rulings of the Circuit Court were in accordance with these views. * * *
“The eases we have cited are conclusive against the contention of the plaintiffs in error. The jury has found that the iron was not of the quality which the contract required, and on that ground the defendant in error, at the first opportunity, rejected it, as he had a right to do. His suit to recover the price was therefore well brought.”
In this case the motors were shipped to the purchaser at Washington, and the verdict of the jury is in favor of appellee’s contention that, when tested, they failed to show the requisite horse power.
This is not an action upon a sealed instrument, but one in which a sealed instrument is merely used as evidence. It follows that there was no error in the failure of the court to direct a verdict in favor of the appellant.
Appellant contends that this provision is exclusive, and forbids a levy upon property in the hands of the plaintiff. We cannot agree with this contention. We find nothing in the statute to show an intention to deprive the plaintiff of this means of satisfying a just claim against a nonresident of the District for the reason merely that the defendant’s property may be in his (the plaintiff’s) possession. We think the intent of section 446 is to malee it clear that the property of the defendant may be attached even if in the hands of third persons, as well as in the defendant’s, and does not limit the right to such cases. In our opinion
There was no error in the action of the lower court, and the judgment will be affirmed, with costs.
Mr. Justice BA1IIEY, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination oí this appeal.