84 S.E. 258 | N.C. | 1915
This action is brought to recover for a breach of contract in the sale and purchase of ten shares of the stock of the American National Bank of Asheville. The contract is evidenced by two telegrams, as follows:
ELIZABETH CITY, N.C. April 26, 1912.
C. C. McDONALD,
Raleigh, N.C.
Will you give sixty for Asheville stock? (Signed) KRAMER.
The defendant replied:
H. G. KRAMER, RALEIGH, N.C. April 26, 1912.
Elizabeth City N.C.
Yes; will give you sixty. (Signed) C. C. McDONALD.
The plaintiff on the same day assigned the stock and sent it with two drafts to the defendant at Raleigh. The defendant refused to pay the drafts and returned the stock. The plaintiff afterwards sold the stock for $200 and instituted this suit to recover the difference, to wit, $400.
The undisputed fact is that at the time the defendant accepted the plaintiff's offer the stock had been assessed by the United States Government $40 per share, which fact was unknown to the defendant. This assessment was made by order of the comptroller on 18 April, 1912, for the purpose of making up a deficiency in the capital of the bank.
The defendant learned of this assessment after he had accepted the plaintiff's offer, but before receiving and paying for the stock. We are of opinion that his Honor was correct in holding upon the admitted evidence that the defendant was not compelled to take and pay for the stock.
It is elementary that in sales of personal property there is an implied warranty of a good title upon the part of the vendor, and this warranty extends to and protects against liens, charges, and encumbrances by which the title is rendered imperfect and the value depreciated thereby. 1. Parsons Contracts, 574; Garrett v. Goodnow, 32 L.R.A., 321; *299
Benjamin on Sales (6 Ed.), by Bennett, 627 et seq., and note 11, page 631;Andres v. Lee,
In McClure v. Central Trust Co.,
It seems to be well settled that the existence of a valid lien upon the stock is such a defect in the title as will avoid the buyer's liability, and in an action for damages, brought by the seller, the buyer may avoid the contract by showing that there was a valid lien on the property. 35 Cyc., 160, 585, and 156.
No error.