Broughton v. Badgett

• Decision Date: 31 March 1846
• Docket Number: No. 13.,13.
• Citation: 1 Ga. 75
• Parties: John H. Broughton, plaintiff in error. vs. Henry BadGETT, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 75

John H. Broughton, plaintiff in error. vs. Henry BadGETT, defendant in error.

No. 13.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an action of covenant upon warranty of soundness of a slave, tried before Judge Merriwether, in the Superior Court of the county of Greene, at March Term, 1846. The facts of the case are set forth in the opinion delivered by the Superior Court, to which the reader is referred.

John G. McHenry, for Plaintiff in Error.

The real effect of the decision made by the court below, rejecting the evidence tendered, is that Broughton has no right to maintain the present action—he having assigned his title to the slave named in the bill of sale, as well as all right to maintain in action for a breach of warranty for any unsoundness that may have existed at the time of the first purchase.

1st. We maintain that by Broughton's endorsement to Attaway. of the original bill of sale made by Badgett to him. not, even title was conveyed to Attaway. Is the instrument tendered (being under seal) such an one as could be transferred or negotiated at common law? Certainly not. Is any negotiable quality given to such instruments by our Statute of 1799. By reference to that statute, it will be found that bonds, speeialties, promissory notes, and oilier liquidated demands bearing date since 9th of June. 1791, whether for money or other things, shall be of equal dignity, and be negotiable by endorsement, in such manner and under such restrictions as are prescribed in the case of promissory notes.

Clearly, at common law, tills being an instrument under seal, cannot he transferred by such assignment as this, not under seal. By our statute referred to, if the instrument be negotiable by endorsement, it must be under the restrictions prescribed in the case of promissory notes. In tills instrument there are to be found no words rendering the same negotiable; so the difficulty at common law is not obviated by any of the provisions of our statute.

The effect of the Statute of '99, goes no farther than to vest an equitable title in the transferee, and does not divest Broughton of the legal title. But admitting for the sake of argument, that by the endorsement Broughton conveyed to Attaway his title In the property, does the alienation of title preclude his right to an action for damages on the breach of warranty? Clearly not. No point Is more firmly established, than that in cases of this kind, damages constitute the gist of the action; soundness or unsoundness is the question; and so soon as the warranty is violated, the right to the action for damages accrues, and even when the party has parted with the title to the property.—1st H. Blackstone, 17; 1 T. R., 136; 2d T. R 745; 1st Taunt.. 368: Wheaton, Selw. Title Deceit.

Again, admitting the assignment by Broughton to Attaway of his title in the propertyspecified in the original bill of sale, does that assignment transfer to Attaway the right to maintain an action, for any breach of the warranty that might occur, made by the original vendor to Broughton? At common law, that being merely a right to bring an action, was not subject matter of assignment. How does it stand by our statute of "J9? That statute allows bonds, specialties, promissory notes, and other liquidated demands to be negotiated under such restrictions as the statute of Ann prescribes for the negotiating of promissory notes. This statute clearly contemplates liquidated demands; instruments given for money or some specific article, for such is the language of the statute itself; and it certainly does not design by the use of the term specialties, to admit of the assignments of all instruments which are made under seal, by mere endorsement. If so, deeds to land are likewise subjects matter of negotiability by mere endorsement. Such is not the meaning of the statute; and, clearly, it does not contemplate the rendering the mere right to maintain actions for unliquidated, uncertain demands negotiable by mere endorsement. Besides, this instrument falls under the provisions of the exception affixed to that statute. What is the real meaning and import of the endorsement upon this instrument? It amounts to nothing more than a second bill of sale by the first vendee Broughton, in tenor and effect as that made by the first vendor to him.

In every view of this question, I contend, both at common law, and under our statute of '99, the court erred in rejecting the testimony tendered.

F. H. Cone for Defendant in Error.

W. C. Dawson in conclusion for Plaintiff in Error.

By the Court—Nisbet, Judge.

Badgett, the defendant in error, sold to Broughton, plaintiff in error, a female slave, and executed to him a bill of sale for her, containing a warranty of soundness. The plaintiff in error sold the slave to one Attaway, and endorsed to him the bill of sale which contained the warranty. The bill of sale was under seal, the endorsement was in parol, and in the following words, to wit: "Jan. 25th, 1844, for full value received I hereby transfer the within bill of sale, made by Henry Badgett to me, to Chesley Attaway, test., A. T. Scott, and signed John Broughton."

After the sale of the slave to Attaway, she proving unsound, as was alleged, Broughton brought his action against Badgett on his warranty for damages. In making out his case, the plaintiff tendered in evidence, the bill of sale, with the endorsement. The defendant demurred to the evidence, upon the ground, that the endorsement transferred all right, on the warranty, to Attaway and therefore, Broughton, the plaintiff, could not sue. The demurrer was sustained and the plaintiff submitted to a verdict. Upon this decision the error is assigned. We are therefore called upon to decide whether the bill of sale is itself negotiable, and if it is, whether the endorsement of it to Attaway, gave to him a right of action upon the warranty of Badgett therein contained—which involves the right of...