Post v. Burnham

DALLAS, Circuit Judge.

This was an action to recover for breach of an implied warranty of title arising upon a sale, of chattels alleged to have been made by the defendants below to (he plaintiffs below. The question was as to whether the contract of sale alleged had in fact been made, and this question being, as was agreed, for determination by the court, upon the documentary evidence adduced, the learned judge held that the sale alleged had not been established; and, inasmuch .as without such sale the implied warrant y of title relied on could not exist, he directed a verdict for the defendants. The subject-matter of tlie alleged sale was four locomotives. That the defendants liad sold them t o the Toledo, Ann Arbor & North Michigan Railway Company is beyond question, as is also the fact that delivery of them had been made by the defendants to "that company. It is also unquestioned ihat after the sale and delivery just mentioned the plaintiffs did purchase the same locomotives. They assert that they bought them from the defendants, but the defendants insist that the plaintiffs did not buy from diem (the defendants), but from the railroad company before mentioned. This difference between the parties is the gist of the present controversy; and its right decision depends upon the effect which should be given to certain correspondence and other writings which are set forth at length in the record, hut to which it is not necessary to refer with particularity. After careful examination of them, we have all readied the conclusion that a sale by the defendants to the plaintiffs does not appear, but that, on the contrary, it. is quite apparent that the only sale to the pláintiffs was made by the railroad company, and that, as was said by the learned judge in the court below, “the defendants did no more than carry out the arrangement between the railroad company and the plaintiffs.” The judgment is affirmed.