Howland v. Doyle Another , 5 R.I. 33 ( 1857 )

By the common law of England there is no warranty of title, any more than of quality, implied from the mere fact of the sale of a chattel, the rule of caveat emptor applying to both. If there is no fraud in the vendor, as in selling as his own that which he knows to be another's, and no warranty of title by his affirmations or conduct, or according to the usage or nature of the trade in which he is engaged, he is not liable for a bad title. The law is thus laid down in Co. Litt. 102, a; 3 Rep. 22, a; Noy's Max. 42; Fitzh. Nat. Brev. 94, c; Springwell v.Allen, Aleyn, 91; Deering v. Farringdon, 3 Keb. 304; and is equally well established in Westminster Hall at the present day.Early v. Garrett, 9 Barb. C. 932; Omrod v. Huth, 14 M. W. 664; Morley v. Attenborough, 3 Exch. Rep. 499; Kintrea v. Preston, 37 Eng. L. Eq. R. 557; Hall v. Conder, 38 Eng. L. Eq. R. 253. It is true that the incautious remarks of some text-writers and judges have given rise to the notion that the rule of caveat emptor, in application to sales of personality, has, in modern times, been exploded, in whole or in part, as a doctrine of the common law; and it is certain that such a notion extensively prevails in this country at the present day, so far as title is concerned. Except to preserve the symmetry of the common-law system, it is perhaps of little practical importance whether a warranty of title be implied from the mere fact of the sale of a chattel, or not, since any affirmation of title by the vendor's words or conduct, would amount to a warranty everywhere; and such a warranty might be proved by the usage of a trade, or be implied even from the nature of the trade in which the transaction occurred. Per Parke, B., Morley v. Attenborough, 3 Exch. Rep. 512.

But whatever may be the rule adopted in this respect, it is evident that no warranty of title to, or of the validity of, this policy can be implied against the defendants, under the circumstances disclosed to us by the evidence in this case. The whole conduct of the negotiation, as well as the position of the defendants as mere trustees, indicates that they did not intend to warrant anything. The assignor, Reynolds, without prior authority from, or consultation with the defendants, his assignees, appears to have entered into an irregular traffic with the plaintiff, in which he traded off this policy, rated at $400, certain doubtful promissory notes, and some shoes, for an acceptance purporting to be of the value of $1,500, which turned out to be forged. Reynolds received, and, so far as appears, disposed of to his own benefit, what of consideration he subsequently got out of the plaintiff in settlement of the forged acceptance; and the part of the defendants, in their joint character as assignees, seems to have been confined to the mere formal signing of the instrument of transfer on the back of the policy. By this instrument, they do not profess to convey the policy, but only "all our right, title, and interest in and to the within policy, as assignees of Wm. H. Reynolds." It is evident, that the plaintiff did not suppose that he had by this transfer any such warranty as he now pretends; because, contemporaneously with the transfer, he obtains from Doyle, one of the defendants, a special written guaranty, not only that the loss under the policy had been proved to the office according to its rules, but "that said insurance company is well and truly indebted to us, as assignees, for the amount thereof." Now it appears, that both the transfer and the guaranty were originally executed by Doyle alone, for the assignees; but it being found that he had no authority to act for his co-assignee, Updike, and that his signature would be necessary to perfect the transfer of the policy, Updike consented to sign, and did sign the transfer, but absolutely refused to sign the warranty. The effect of this is, that the plaintiff took the transfer of this policy, with the understanding, that one of the assignees would, as a joint act, warrant nothing, and that so far as warranty was concerned, he must rely solely upon the express engagement of the other. This is not a case, therefore, in which recovery can be had of the defendants upon the ground of failure of consideration; the theory of such a case being, that it was understood by all parties, that the bargain should be at an end if the plaintiff should not have obtained a good title. The assignees, looking at their joint action, in sanctioning by their transfer this sharp bargain between Reynolds and the plaintiff, evidently intended to hold up the rule ofcaveat emptor, as most appropriate to the transaction, and in substance, say to the plaintiff: "Make what bargain you will, and pay what you will, to our assignor; we transfer to you what we have got from him, without warranty; you to take the risk of the transfer's availing you, except so far as you are secured in that respect by the warranty of one of us." Under such circumstances, and in the absence of all fraud, the remedy of the plaintiff, as it seems to us, is solely on the express warranty which he took from one of the defendants; and therefore judgment must be entered for the defendants, in this action, brought by him against both of them.