8 Minn. 395 | Minn. | 1863
By the Court.
We gather the following facts from the case. On the 24th of December, 1856, the Defendants below sold to Harvey Officer certain land warrants in the city of Baltimore, and guaranteed them to be in “ all respects genuine and receivable at the General Land Office of the Hnited States.” They were afterwards, together with the guaranty, sold by Officer to Ames, and by Ames to McKenty, who, on the 13th day of January, 1857, located them on certain lands of the Hnited States, and deposited them in payment therefor in the local land office at Chatfield in this State. Before the 18th of March, 1861, McKenty sold and conveyed by warranty deed the lands upon which the warrants had been located, and also the warrants and the Defendant’s guaranty to the Plaintiff, and on the 19th day of March, 1861, the warrants were refused by the Commissioner of the General Land Office, on the ground that the assignments were not genuine.
Before the commencement of the action, the Plaintiff purchased of Officer, Ames and McKenty, any and all claim or cause of action which they or each of them had or might have against the Defendants, on account of the sale and guaranty of the warrants.
It is as well to settle here the point made by the Defendant’s counsel as to the character in which the Plaintiff sues, whether as original owner of the cause of action, or as assignee of Officer, Ames or McKenty. And in examining this question we are necessarily led to a decision of the plea of the statute of limitations which is set up by the Defendants.
When the warrants were sold and the guaranty given on the 24th day of December, 1856, the assignments were void and
In regard, to the character in which the Plaintiff sues, we think the attorney for the Defendants labors under a mistake in supposing that the warrants and accompanying guaranty were extinguished when the former were located by Mr. McNenty. The warrant is not cancelled, nor does the title to the same pass from the locator until it is accepted in payment
■ The custom pleaded by the Defendants, under which they claim the right to substitute other warrants in the place of those originally sold and guaranteed; is in effect a custom by which the vendor of an article which is'warranted to be genuine, and turns out to be spurious, may satisfy his obligation by paying in hind, instead of responding in damages according to the rules of the common law. The only question for us to consider is the validity of such a custom, supposing it to be fully established, as the referee on the trial excluded all testimony upon the subject as incompetent, evidently holding that the custom, if it did exist, -was invalid and could not be allowed to influence the common law meaning and force of the guaranty.
All contracts made in the ordinary course of business, with
Now, in regard to the usage under consideration, it is well known that the business of dealing in land warrants is of but very recent date, as it is only within a very brief period that such warrants have been made assignable at law. See U.S. Statutes at large, Vol. 10, ¶. 3. Antiquity, one of the most essential elements of a valid usage, is therefore wanting in this case ; but as that feature is more important in reference to the knowledge of parties, than to the character of the usage, we refer to it here, merely as bearing upon the point of sanctioning the same as a new question, without precedent to fortify it.
We have examined the subject to considerable extent, and have been unable to find any decided case upholding a usage of this character. The only judicial intimation that tends that way which we find, is-in the case of Allen vs. Dykers, 3 Hill., 593, where the Court, at page 597, in speaking of a usage to pay in kind, where a stockbroker had sold stocks which were pledged to him as collaterals, says, “ It is not necessary to determine what effect would be due to such proof in the case of a simple pledge as collateral security, without any further agreement. Possibly the known usage in like cases might be considered as attaching itself to the transaction, and constituting a part of it.” The case, however, went off on another point.
In the case of Wigglesworth vs. Dallison, Douglas, 201, reported also in 1 Smith’s Leading Cases, p. 300, a most elabo" rate collection and review of the cases on the subject of
' The referee was right, and his judgment is affirmed.