28 Barb. 533 | N.Y. Sup. Ct. | 1858
Assuming that in the sale of the machinery in question by the defendants to the plaintiff, the former acted in their own right and not as agents of the rope and bagging company, and that they made the sale without title, it appears abundantly by the evidence that the plaintiff, at the time he made the purchase, knew, as well as the defendants knew it, the condition of the title to the ma.chinery. It was perfectly understood by all the parties, that the legal title was in the rope and bagging company, and that the property was largely encumbered by executions in the hands of the sheriff of Somerset county, New Jersey, by virtue of which a levy had been previously made. The property was not present at the sale, being in the factory at Somerville, and in the legal custody of the sheriff, and there was then no actual tangible delivery of the property to the plaintiff. One of the executions was in favor of the defendants, and was for an amount beyond the value of all the personal property levied upon. The other executions were comparatively small in amount, and were junior to that of the plaintiffs. Under these circumstances, all that the defendants could do towards giving possession was done, and the plaintiff met with no obstacles from the defendants or the company, in getting the possession, nor from any source, excepting the sheriff, who prevented his removing the machinery.
At the time of the sale, a part of the transaction agreed Upon was, that -the defendants should give the plaintiff an order on the sheriff for the machinery. This was all the plaintiff required. The order was given accordingly, but failed to accomplish the expectations of the parties. The sheriff disre
This contract of sale was made in the city of Hew York. The property in question was not in the possession of the defendants, at the time of the sale, and it does not appear that it ever had been in their possession. Under such a state of facts, as to which there is no controversy upon the evidence, the law does not imply a. warranty of title.
There is no doubt of the general rule as held in this and other states, that where the seller has possession of the article and sells it as his . own and not as agent for another, and for a fair price, he is understood to warrant the title. (2 Kent’s Com. 478. Parsons on Cont. 556,7, 8, and note h.) But if the seller is out of possession, and np affirmation of title is made, the purchaser buys at his peril. (Same authorities.) In this case the evidence entirely repels any implication of warranty.
If the jury, upon the evidence given at the trial, had found a verdict for the plaintiff, the court would have been bound to set it aside as against evidence; it was therefore proper for the judge to direct a verdict for the defendants, and a new trial should now be denied, for the same reason.
There is another reason why a new trial should be refused. It is apparent from the whole case, that the plaintiff can in no event recover any thing but nominal damages, and in such a case the court will not grant a new trial although an error has been committed in the charge. If here had been a warranty of title, and a full breach proved, the measure of damages would be the contract price paid for the property. (Armstrong v. Percy, 5 Wend. 535.) But the plaintiff has paid nothing, and his note, given for the machinery, was produced for cancellation on the trial. Under the facts disclosed no
Welles, Smith and Johnson, Justices.]
Mew trial denied, and judgment ordered for the defendants, on the verdict.
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