Corwin v. Wesley

The description given of the property which is the subject of the sale, in the body of the assignment, is a representation, first, that the paper assigned is a mortgage, and, *116secondly, that such mortgage was made by Caroline and Thomas Wilson; and that representation constituted a warranty that such was the fact. •

hTo particular words are necessary to constitute a warranty. A representation that a horse is sound is a warranty, except as to defects which are patent or readily ascertainable; and, certainly, a bill of sale of one hundred barrels of superfine flour, which the purchaser has no means of inspecting because in closed casks, is a warranty that the article is what is known as superfine flour.

The particular agreement or stipulation which follows the assignment, in the same paper, was, in legal effect, also a warranty that the mortgage was then outstanding, or, in other words, in force as a mortgage ; and that warranty, it appears to me, is not limited by the words “ as against the said Wesley or any act or deed of his.” Be that as it may, however, it is enough, I think, to say that the defendant did sell and assign the instrument in question to the plaintiff as a mortgage made by C. and T. Wilson, and represented, and, ' therefore, warranted it to be so in his assignment. As I understand the case, that warranty was broken the moment it was made, because the paper assigned and described in the assignment as a mortgage made by C. and T. Wilson was not made by them, but was a forgery. The plaintiff, therefore, was entitled to recover.

The judgment should be affirmed, with costs.

Monell, J., concurred.

The judgment below proceeded on the ground that defendant had warranted the Wilson chattel mortgage, and on that ground only ; and that ground only is now urged in its support.

The decision of the case turns on the effect to be *117given to the words “against the said Wesley, or any act or deed of his,” contained in the assignment of the mortgage.

The assignment, as originally drawn, did not contain these words ; and as it then stood it contained a full and absolute warranty. By agreement the assignment was sent to the defendant’s attorney for his approval. He did not approve of it in that form, but inserted the words in question.

The natural effect of these words is a declaration by the assignor that he will not covenant the validity of the mortgage except to the extent that he himself has not, by any act or deed, or in any other manner, done anything to impair its validity. The words have some meaning and were inserted for some object.

The only meaning they can have in the connection in which they are used is that above ascribed to them, and the only object of their insertion that of a limitation of the assignor’s liability. I see no escape from giving them this construction.

It is, however, insisted that they qualify the last covenant only, and that sundry of the words contained in the preceding covenants import a warranty of title, especially the word “outstanding.”

All the covenants, however, are contained in one sentence, the only mark Of separation being commas, and the words in question are at the end of the whole sentence, and they must, in my view, be taken as qualifying the whole.

It would be too forced a conclusion to hold that although by the concluding portions of the sentence he had qualified his warranty of validity, yet, notwithstanding, preceding words in the same sentence constitute a full warranty of validity without qualification.

I think the defendant cannot be held on the clauses contained in the assignment, and that the exception to the charge was well taken.

*118On a new trial other facts may be proved, and further evidence given which may fasten on him a liability on some other ground.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.