Shattuck v. Green , 104 Mass. 42 ( 1870 )

Morton, J.

It is a general rule of law in this country, that in a sale of chattels a warranty of title is implied, unless the circumstances are such as to give rise to a contrary presumption. 1 Smith Lead. Cas. (6th Am. ed.) 242. 1 Parsons on Contracts, (5th ed.) 576, and cases cited. If the vendor has either actual or constructive possession, and sells the chattels and not merely his interest in them, such sale is equivalent to an affirmation of title, and a warranty is implied. In Whitney v. Heywood, 6 Cush. 82, 86, Dewey, J., says, “ Possession here must be taken in its broadest sense,” and “ the excepted cases must be substantially cases of sales of the mere naked interest of persons having no possession, actual or constructive, and in such cases no warranty of title is implied.” The possession of an agent or of a tenant in common, holding the goods for the vendor and as his property, and not adversely, is the constructive possession of the vendor; and if he sells goods thus held as his, a warranty of title is implied. Hubbard v. Bliss, 12 Allen, 590. Cushing v. Breed, 14 Allen, 376.

In the case at bar, it appeared that Shattuck on December 7, 1866, bought of Wilks W. Corey an undivided half of the stock in trade, furniture and fixtures of a dining saloon in Boston, and on December 11, 1866, sold the same to Green. Shat-tuck was in New Hampshire, and did not take manual possession of the property, but it remained, as it had previously been, in the possession and use of Corey & Stiles, who were carrying on the saloon, said Corey being a son of Wilks W. Corey. Green, after the sale to him, entered into possession in connection with the younger Corey, and remained in possession until the property was taken by the National Warehouse Company under a paramount title. Thus Corey & Stiles were in actual possession of the chattels at the time of the sale to Green. There was no evidence that they held them adversely to Shat-tuck, or to Wilks W. Corey and Shattuck, who by the sale of December 7 became tenants in common. On the contrary, there was evidence which might well satisfy the jury that they held possession of .them as the bailees or agents of Wilks W. Corey and Shattuck. If this was so, and Shattuck sold to Green one undivided half of the property as his, there was an implied warranty of title. The ruling at the trial that the jury would not be authorized find an implied warranty was therefore erroneous. The argument that the written contract between the parties contains no express warranty, and excludes an implied one, cannot prevail. The parties did not put their contract in writing. The indorsement on the bill of sale does not purport to set out the contract of sale. That appears to have been by paroi; and the fact that the vendor delivered the bill of sale, with such assignment on it, either as a muniment of title, or as a symbolical delivery; or as an incident of the transaction, does not prevent his liability upon the implied warranty of title.

In considering these exceptions, we are obliged to assume as true all the facts which the testimony in favor of the excepting parties tends to establish. At the new trial, it will of course be for the jury to decide whether there was in fact a sale by Shattuck to Green, or whether Shattuck acted merely as the agent of Green in the purchase of Corey, so that no warranty of title would be implied against him.

Exceptions sustained.