13 N.H. 109 | Superior Court of New Hampshire | 1842
We.will first enquire as to the sufficiency of the notification to Smith, of the caption of the deposition of Chandler, used on the trial of this cause. It is contended, on the part of the' defendant, that the notification was wholly insufficient, inasmuch as the same did not, as he alleges, point out the parties in the suit ; or, in other language, the notice did not specify, with proper precision, the suit in which the deposition taken was intended to be used. And, undoubtedly, if the notification were thus defective, such defect would constitute a valid objection to the use of the deposition, and form a proper ground upon which to set aside the verdict. The statute provides, “ that the party proposing to take a deposition, shall, a reasonable time previous to the taking of the same, cause a notification in writing, signed by some justice of the peace in this state, to be delivered to the adverse party, or left at his usual place of abode ; and in such notification shall be expressed the name of the justice of the peace before whom such deposition is to be taken, and the day, hour, and place of taking the same.”
Looking to the purposes of the notification, and the objects to be attained thereby, it cannot well be doubted that it was the intention of the legislature that the notification should not only contain the matters specified in the statute, but that it should also give information of the action in the
It is clear, we think, that a notification, in order to its sufficiency as such, must plainly indicate the action, and, of course, with reasonable precision must designate the parties to the action in which it is intended that the deposition proposed to be taken shall be used. The question then is, did the notice in the present case substantially convey that information to Smith ? Did it reasonably inform Smith that the deposition was designed to be used in the action, Kings-bury vs. Smith ? or, was it so wanting in that information that it was calculated to mislead Smith, and to leave him in any reasonable doubt as to the action in which the deposition was intended to be used, or as to his interest in the taking of the deposition ?
The notification was addressed to the defendant, contained a true description of the form of the action, and of the term of the court at which the action stood for trial. And the plaintiff was set up in the notification, as having some relation and some connection with the action ; and although it does not in terms describe him as being the plaintiff in the action, yet it is stated, that in the action in the trial of which the depositions were to be used, the plaintiff sues by his guardian, John Kingsbury.
The notification, then, as it appears, was addressed to the defendant, and informed him that the plaintiff sued in the action in which the deposition was to be used ; described the form of action truly, and the term of the court at which the action was to be tried, and failed only to state in terms that Smith was the defendant and that Kingsbury was the plaintiff.
A farther objection to the verdict, urged by the defendant, is, an alleged error in the instructions of the court to the jury. The instructions complained of were, “ that if the plaintiff, for the consideration stated in the case, purchased the horse, ignorant of the fraud of Chandler, that the plaintiff was entitled to liold the horse thus purchased.” That consideration was the discharge of a preexisting debt due to the plaintiff from Chandler, in part payment, and the delivery of an overcoat to Chandler by the plaintiff, for the residue of the price of the colt, at the time of' the purchase. The substance of the charge was, that if the plaintiff purchased bona fide, and for a valuable consideration of Chandler, who had the possession of the horse at the time, such a purchase of the horse passed, the title to the plaintiff, notwithstanding the vender of the plaintiff had. no sufficient title as against the defendant, by reason of fraud. The question raised upon the charge of the court is one which has been often considered, and would seem to be well settled upon the authorities.
Thurston vs. McKown, 6 Mass. R. 428, was an action upon a promissory note, by the indorsee, who had purchased it bona fide, and for a valuable consideration, of a fraudulent indorser, against the maker. Parsons, C. J., in delivering the opinion of the court, says, “ The question upon the merits of the case, is, whether the loss shall fall on the bona fide purchaser of the note, or on the maker, who was defrauded.
And in Somes vs. Brewer, 2 Pick. 184, where a grantee obtained a deed of land by fraud and imposition upon the grantor, and without consideration, and entered under the deed, which was duly acknowledged, and afterwards conveyed the land to a bona fide purchaser for a valuable consideration, without notice of the fraud, it was held that such purchaser had a valid title against the first grantor. And Parker, Chief Justice, in the opinion says : “ There could be no security of titles, if a purchaser from one actually seized •and possessed, with an apparently lawful title existing on the public records, he having no knowledge of a concealed defect in the title of his grantor, should be liable to be defeated of his title by proof of fraudulent acts of his immediate or remote grantor, of the existence of which he had not even a suspicion.” “And there is not a single case at law or equity where a bona fide purchaser has been deprived of his title by proof of fraud practiced by his grantor upon the person of whom he purchased.”
Rowley et al. vs. Bigelow et al., 12 Pick. 307, was trover for 627 bushels of corn. Martin, the immediate vender of the defendants, got possession of the corn by means of a fraudulent purchase of the plaintiffs, and the corn was shipped and consigned to' the defendants, with other corn, for sale on the shipper’s account; and, on being advised of which, the defendants had accepted a bill for $1,000, at ten days
In Parker vs. Patrick, 5 T. R. 175, where goods were obtained from the defendant by false pretences, and were afterwards pawned to the plaintiff, for a valuable consideration, without notice of the fraud, and on convicti on of the person who obtained them, the defendant got possession of the goods again, it was decided that trover would lie by the pawn-broker to recover the value of the goods of the defendant. In the last case, the principle upon which the judgment proceeded is not stated.
Upon the cases cited it would seem clear that the charge to the jury was entirely correct. Upon the finding of the jury, no fraud in the purchase is imputable to the plaintiff,
The defendant, by reason of the sale to Chandler and the delivery of the horse to him, furnished Chandler with the means of deceiving the plaintiff. If either, then, was in fault, it was the defendant rather than the plaintiff. And it is a well settled rule of law, applicable in a large class of cases, that in the case of two innocent persons, if loss comes it must fall on him who, through negligence, or carelessness, or inadvertence, is the occasion ‘of the loss sustained. See the authorities before cited. In this case, though unintentionally, the defendant’s acts were the occasion of the loss, if loss should finally fall any where.
It has been urged by the defendant, that inasmuch as the consideration for the purchase was in part the mere discharge of a precedent debt, the property did not pass to the plaintiff by the purchase from Chandler, and that this case forms an exception to the general rule. This view of the case, however, cannot be sustained. Should it be holden,
The question is not one depending upon the amount or magnitude of the loss, but is to be sustained by him who has occasioned the loss, whether small or large. The loss, then, as we hold, being occasioned by the defendant, gives the plaintiff the superior equity, as against the defendant; and the plaintiff, upon the authorities, and upon every sound reason, is, in our opinion, entitled to hold the property of the horse as against the defendant.
It was contended at the argument that the rule of damages given to the jury at the trial was erroneous : that the true rule of damages in the case was the price of the overcoat instead of the price of the colt.
But this view cannot be sustained. The title to the colt vested in the plaintiff bjr the purchase from Chandler. The colt was the plaintiff’s. If, then, the property of the colt was in the plaintiff, and the defendant converted it to his own use, we know of no principle of law that would forbid a recovery of its value by the owner in an action of trover.
A still farther objection to the verdict is urged, viz., that Chandler, the witness, was interested in the event of the suit, and so was incompetent to give evidence; that he was interested in the success of the plaintiff.
This exception, we are all of opinion, was well taken, and is sustained. His interest was not equally balanced, as contended by the plaintiff. If the plaintiff should succeed, the witness would be bound to the defendant only for the value
Staats vs. The Executors of Ten Eyck, 3 Caines’ Rep. 111, (a leading case on the subject,) was an action founded upon the covenants of the testator, contained in his deed ; one being in effect a covenant that the testator was seized in fee, and had good right to convey; and the other, that the grantee' should hold the land free from any lawful disturbance or eviction. It was therein decided, that the consideration paid, and interest thereon from the date of the purchase of the land, and the costs sustained in the action of ejectment for the recovery of the same, including reasonable counsel fees, as well as those which are taxable, constituted the true measure of the plaintiff's damages.
So, also, in Pitcher vs. Livingston, 4 Johns. 1, which was an action for a breach of the covenants of seizin and of quiet enjoyment, a similar rule of damages was recognized.
Waldo vs. Long, 7 Johns. 173, was an action of covenant, brought on the covenant against incumbrances. It was ■holden in that case, that the bills of cost which the plaintiff incurred, and became liable to pay in the action of ejectment against him, were a proper item of the damages occasioned by the incumbrance, which the plaintiff was entitled to recover.
Bennet vs. Jenkins, 13 Johns. 50, was an action of cov
Sumner vs. Williams, 8 Mass. 162, was an action brought upon the covenant of warranty in a deed of land. The deed contained the other usual covenants, and the plaintiff’s intestate had been evicted.
It was determined by the court that the true measure of damages was the consideration paid for the land, and interest from the time of the payment, together with the expenses incurred in defending the action brought against said intestate. The court said, “ We are all of opinion that the plaintiff is entitled to recover the expenses which have been incurred in defending against Dudley’s suit, because we think those expenses are inseparably connected with the plaintiff’s claim of .indemnity ; and it would be too much to demand of the grantees in such a case, that they should be holden to decide at their peril the validity of the title set up in opposition to the title which the grantors undertook to convey.”
In Armstrong vs. Percy, 5 Wend. 535, it was decided that the measure of damages in an action brought for a breach of an implied warranty of title in the sale of a horse, is the price paid, and interest thereon, and. the costs recovered against the purchaser or his vendee, in case of a suit by the owner and notice to the vender. It was there said, however, that the costs of the defence are not recoverable in such a case. In support of the latter position, the case of Blasdell vs. Babcock, 1 Johns. 517, is cited, as well as the case of Lewis vs. Peake, 7 Taunt. 152. But no such question was made in either of those cases, and no reason is assigned for the opinion, except that such costs had not before been allowed.
In Leffingwell vs. Elliot, 10 Pick. 204, it was holden
Swett vs. Patrick, 12 Maine R. 9, was an action founded on a breach of the covenant of warranty in a deed of lands. In that case, it was decided that the true measure of damages, where there has been an eviction by judgment of law, is the value of the land at the time of the eviction, and the necessary expenses incurred in defending the suit, including the fees paid to counsel.
So, also, Smith vs. Compton, 4 B. & A. 407, decides, that in an action for the breach of covenant for good title to convey, the plaintiff is entitled to recover fees paid to counsel, as a part of the damages sustained.
Pitkin vs. Leavitt, 13 Vermont R. 379, was an action of covenant for the breach of the covenant of warranty in a deed of land. Upon action brought by the plaintiff against one Robert Spencer, to recover the possession of the land, the action failed by reason of the insufficiency of the title derived from the deed of the defendant, and judgment was rendered in favor of Spencer for costs. The plaintiff in this action had judgment for his damages, including the legal costs, and other necessary expenses of the action against Spencer.
Haynes vs. Stevens, 11 N. H. Rep. 28, was an action for a breach of the covenant in a deed against incumbrances. The land at the date of the deed was in fact incumbered by a highway; and the plaintiff, by the representations of the defendant, that the land was not thus incumbered, had been induced to commence an action against persons using the •way, in which action the plaintiff had been defeated. It
The principle deducible from the cases cited would seem to be, that the grantee in an action upon a covenant of warranty, express as in a deed, or implied as upon the sale of personal property, is entitled to recover, as part of his damages sustained by reason of the failure of the title conveyed, the reasonable and necessary expenses incurred in a proper course of legal proceedings for the ascertainment and protection of his rights under the purchase, as well as a reasonable compensation for his trouble and expenses to which he may have been put in extinguishing a paramount title.
And it seems to us, that there can be no sound distinction between the case in which the expenses are incurred in the necessary and proper prosecution of a suit for such ascertainment and protection of the purchaser’s rights, and the case of a defence made for the same purpose.
In the case under consideration, it would, in our view, fall little short of absurdity to hold that if the plaintiff had kept possession of the horse, and the defendant had brought suit, the plaintiff would be entitled to recover, as damages in a suit against Chandler on the implied warranty of title, the expenses of the defence ; and at the same time to hold that when the defendant had got possession of the horse, and the only means left the plaintiff for the ascertainment and protection of his rights is the very suit he has brought, he would not be entitled, in an action on the warranty against Chandler, to recover the expenses of the present suit, properly and necessarily incurred, in the event of a failure of success, by reason of a failure of the title conveyed to him by Chandler. Such a doctrine, making such a distinction, we think cannot be sustained upon sound reason, or upon well considered decisions, which go to establish the right of a recovery of the costs and expenses, as clearly, we think, in the one case as in the other. See the cases before
New trial granted.
