26 Conn. 23 | Conn. | 1857
The question made in this case is, whether the sale of this note to the plaintiff is a sale of a specific instrument, just as it is, true or false, or a note of hand truly indorsed as it purports to be by George W. Gorton and C. G. Smith. If it be the former, the plaintiff can not recover; if the latter, then, in the opinion of a majority of the court, he can.
The case does not differ in principle, we think,'from what it would be if the maker’s name had likewise been forged, when we should have before us a simple case of the clearest equity and natural justice.
The motion shows that this note was sold by the defendants for themselves and not in any delegated capacity for another, which latter circumstance indeed would make no difference if it were not known to the plaintiff, and hence the defendants are liable to refund if any body is liable beyond the maker, who of course is, for his signature is genuine and obligatory. •
The plaintiff seeks to recover back the sum he paid for the note, having first tendered the note to the defendants, on the ground that he has not received what he bought and paid for, the genuine indorsements of George W. Gorton and C.
No question is made as to the entire integrity of the defendants, who intended to sell and supposed they did sell to the plaintiff a note well and truly indorsed as this purports to be. It is equally true that the plaintiff intended to buy and supposed he did buy just such a note, and neither of the parties thought of any thing else. Certain it is then that both parties were mistaken in a fact of vital importance, so that in truth the plaintiff has parted with his money without the equivalent which both parties expected he would receive. The essential value of the note lying in the validity of the indorsements, when the indorsements failed the note was no better than a blank piece of paper. Though the maker was bound, yet he was insolvent and had absconded to parts unknown. It is an indorsed note in form only, a bit of paper with ink on it, quite unlike the thing supposed to be sold by one party and purchased by the other. Who shall bear this loss? This is the question. And we must think that, in law and morals, it is a question of easy and ready solution.-
There are several views of the case, all of which will lead to the same conclusion. In the first place, there was no sale, because the subject matter of the sale had no existence. A sale is defined by Biackstone to be “ a transmission of property from one man to another, in consideration of some price or recompense; there must be quid pro quo” Parsons, in his work on Contracts, (vol. 1, p. 436,) says, an exchange is giving one thing for another thing, while a sale is the giving one thing for that which is the representative of all things. He goes on to say, that the existence of the thing to be sold, or the subject matter of the contractas essential to the validity of the contract. If a horse which has died, a fact unknown by the parties, is sold at the present time, or goods which have been burned, the sale is not good, for the very basis of the negotiation and transfer is wanting. Indeed, it is clear law, that if a substantial part of the thing sold be non-existent,
Suppose the defendants had proposed to sell and had sold a bar of metal as gold, which turned out to be mere dross, colored and disguised, without a particle of gold; or a barrel of flour which was examined on the surface, but below was mere saw dust or gravel; or a barrel of beef which turned out to have one layer of beef and the rest was brickbats and stones; or a box of chisels which turned out to be scrap iron; would the seller be permitted to insist that it was a sale and keep his money? We think the purchaser was entitled to have a thing of the kind and description which the thing sold purported and was understood to be. We say nothing of quality, for as to that the maxim caveat emptor applies, but only of kind and description, to which the maxim is not supposed to apply, for the seller assumes the existence and title of the thing itself in his offer to sell, unless indeed there be some provision in the contract to the contrary. Now, in this case, the parties assumed, as the very basis of their negotia
We believe the law to be, in the sale of notes and other instruments, if not of chattels generally, that the thing shall correspond in kind and description with what it purports to be and is sold as being at the time of sale, and that the cases to which we will refer, most fully support this principle of law. Gampertz v. Bartlett, 24 E. L. & Eq., 156, is a very recent case. There the defendant sold the plaintiff an unstamped bill, purporting on the face of it to have been a foreign bill, drawn in Sierra Leone and accepted in London, but which it appeared in fact was drawn in London. There was no warranty nor fraud. The acceptor having failed, the plaintiff was obliged to take up the bill, and having done so, sued the defendant to recover back the money he had paid him for it. In the defence, the fact was relied upon that the defendant did not indorse or warrant the bill, but sold it as it was, and he claimed that as this was all fair and honest on his part, he was not responsible, although the bill did not turn out to be" what it purported to be. The court, however, held him liable. When the ease was tried at nisi prius, Campbell, Ch. J., nonsuited the plaintiff, but on the final trial he changed his opinion. In the opinion which he then gave, and in which all the other judges concurred, he sa.ys, “ On the face of this bill, it purported to be drawn at Sierra Leone, and it must be taken as answering the description of that which on its face it purported to be. That amounted to a
The counsel for the defendants insist that the transaction between the parties was a sale of a specific piece of paper, and nothing more, and that the transaction is to be governed by the law of that class of cases, where, if there be no warranty, there is no undertaking as to the quality or goodness of the article sold. In our judgment, the transaction bears a much stronger resemblance to the class of cases in which
In some of the cases which we have cited and commented on, it is said that where there is a mutual mistake of fact, there is not a sale, because there is a failure of consideration; in others because there is an implied warranty of genuineness, or of kind and description; and still in others, because the thing is not in existence: but the true idea is, as I think, that if the thing contracted for is essentially non-existent, there is
Again, it is dear law, as laid down in the books, that if these defendants had made an executory agreement with the plaintiff to procure for him a note indorsed by George W. Gorton and Chauncey G. Smith, he must have procured just such a note, and the delivery of any other would not have been a fulfillment of the agreement; but we ask in what, in principle, consists the difference between that case and the present. In the ease supposed, the parties would have understood that the indorsements were material and were to be genuine and obligatory, and in the present case they understood just the same thing, or there would have been no sale of the note. When the defendants brought out and presented to the plaintiff the note in question, to be sold and transferred to him, they must be presumed to have said, if not in words, yet in the transaction itself, that the note they were offering to sell was what it purported to be and nothing less or different. As to solvency, it was understood the plaintiff must judge for himself, but as to the existence of the note, of this exact note, it was assumed to be just what it appeared to be. So that whether the note was to be procured, or had been procured and was then present before the parties ready to be delivered, seems to us to be essentially the same thing. In both cases the parties intended that the plaintiff should receive a genuine instrument, and on this understanding alone the negotiation was perfected.
So likewise, all the cases show that if the note had been transferred to the plaintiff in payment of an existing debt, or was discounted at a bank or elsewhere, the defendants would be responsible for the genuineness of the indorsements, for a payment in forged paper is no payment at all, and a discount
There is yet another view of this case which is decisive against the defendants. When the defendants brought out this note and offered it to the plaintiff for sale as being their own property, they must be understood as presenting it as a’ genuine note, like what it purported to be. If this be so, then we think this is a representation which, according to the books, constitutes a warranty that the note is a real note and really indorsed as it appeal’s to be. There is no universal rule determining what words or representations are necessary to make a warranty, yet the cases are numerous that a verbal representation by the seller of an article, or a description of it in a bill of sale, is a warranty that the article is of the kind and description which it is represented to be. In Barr v. Gibson, Parke, J. says, that the bargain and sale of a chattel as being of a particular description, does imply a contract that the article sold is of that description; and he cites several authorities in support of the doctrine. In Shepard v. Kain, 5 Bar. & Ald., 240, the court say, “ The meaning of the advertisement must be, that the seller will not be responsible for any fault which a copper-fastened ship may have; with ‘all faults’ must mean, with all faults which it may have consistently with its being the thing described. Here the ship was
There is another question made in the case by the defendants’ counsel, which we will here briefly notice. It is said that however the doctrine may be on the main question in dispute, the indorsements can not be denied after what has taken place between the parties, and that the plaintiff is estopped by his own act after he had learned the note had been demanded and protested, by his acquiescence and silence as to any forgery. Were this an action against Mr. Smith, and the evidence against him the same, as the present parties have agreed it may be held to be for the purposes of this trial, we think a jury might perhaps find that Mr. Smith was liable; but it is not an action against him, and
We advise judgment for the plaintiff.
In this opinion Hinman, J. concurred. Storrs, C. J. dissented.
Judgment for plaintiff advised.