Bybnside v. Burdett.

• Decision Date: 22 November 1879
• Citation: 15 W.Va. 702
• Parties: Bybnside v. Burdett.
• Court: West Virginia Supreme Court

15 W.Va. 702

Bybnside

v.Burdett.

Supreme Court of Appeals of West Virginia.

Decided November 22, 1879.

1. A warranty of title is to be implied from the contract, as much, in the case of an exchange of horses then in the possession of those making the trade as upon a sale; and this implied warranty is as much a part of the contract as if it had been express.

2. In an action by a purchaser of goods against his vendor it is not necessary for the purchaser to show that he gave notice of the pending of the suit brought against him by the real owner of the property. His omission to give such notice will only prevent his recovering of the vendor any of the costs of that suit, and will throw the burden upon him of proving by evidence, other than the record of the former suit, thai the vendor had no title to the property, at the time he sold it to him.

3. A warranty of title should only be implied with regard to sales of personal property when good faith requires it.

4. The possession of a vendor of chattels is equivalent to an affirmation of title. And in such case the vendor is to be held to an implied warranty of title, though nothing be said on the subject between the parties. But if the property sold be at the time of sale in the possession of a third person, and there is no affirmation or assertion of ownership, no warranty of title will be implied.

5. If however there be an affirmation of title when the vendor is not in possession, the vendor should be subject to the same liability as if he had the possession at the time.

6. A. case where what purports to be a search-warrant was held void on its face, and also what purported to be a judgment of a justice was held inadmissible as evidence. See opinion of the Court in this case.

Supersedeas to a judgment of the circuit court of the county of Putnam, rendered on the 28th day of ~ October, 1875, in an action in said court then pending, wherein Richard Byrnside was plaintiff and Powell Burdett was defendant, allowed upon the petition of said Byrnside.

Hon. Joseph Smith, judge of the seventh judicial circuit rendered the judgment appealed from.

The facts of the case are fully stated in the opinion of the Court.

James M. Laidley, for plaintiff in error, relied on Begina v. Finney, 2 C. & K. (47 E. C. L.)

Smith & Knight, for defendant in error, cited the following authorities:

7 Rob. Pr. 151, 152; 2 Rand. 132; 2Saunders 32, n. 1; 31 Barb. 540; 7 Gush. 166; 5 Wend. 535; 2 Rand 313; 7 Rob. Pr.' 14, 15; Id 67 etseq.; 10 W. Va. 250; 2 Gratt. 28; 8 W. Va. 584; Id. 515; 21 Gratt. 216; 7 W. Va. 348.

Haymond, Judge, delivered the opinion of the Court:

This is an action brought by the plaintiff against the defendant in the county of Putnam, to recover damages upon warranty of title of ahorse traded by the defendant to the plaintiff in exchange for a horse of the plaintiff. The declaration contains three counts, the first of which claims $150.00 damages, and the second and third $200.00, each. There was a demurrer to the declaration and each count thereof filed by the defendant's counsel in the court below, but the demurrer to the declaration was overruled. The defendant's counsel have not claimed before us that the court below erred in J any respect in overruling the said demurrer, and in fact the counsel for the defendant in their brief seem to admit impliedly, at least, that the circuit court did not err in overruling the demurrer. Under these circumstances I have not felt called upon to examine the declaration with such care, as I would under other circumstances. But taking it for granted after examination that the declaration and each count thereof is good upon general demurrer, I pass on to a further statement and examination of the ease upon other matters. It appears that on the 28th day of April, 1875, the said demurrer was overruled. And on the 26th day of October, 1875, the parties appeared in the said circuit court, by their attorneys, and thereupon came a jury of twelve good and lawful men tried and sworn to well and truly try the issue joined. The issue joined in the case was on the plea of not guilty. On the 27th of October, 1875, the jury by their verdict found for the defendant,. And thereupon the plaintiff by his attorney moved the court to set aside the verdict of the jury and grant him a new trial on the ground that the said verdict was not warranted by the law and the evidence in the cause. Afterwards, on the 28th day of October, 1875, the said court overruled the plaintiff's said motion, to which ruling and judgment of the court the plaintiff excepted. And thereupon the court rendered judgment for the defendant upon the verdict of the jury. It also appears at the foot of said judgment that on the trial of the case the plaintiff, by his counsel, tendered two bills of exceptions to opinions of the court, which were received, signed and sealed and made a part of the record in the cause. By bill of exceptions number one, it apappears that the plaintiff, to sustain the issue on his part, introduced the record and proceedings before E.Griffith, a justice of the peace for Lincoln county, in the following words and figures, to-wit:

"M. M. Lawrence personaly appeared before me and made oath that he had a cream colore! white horse stold in the month of November, 1871, by C. C. Philaps and ran off by A. Ball, and from infumation the said horse is in the posesion of R. Byrnside, an I therefor demand a State warnt for the horss and R. Byrnside. This the 1st of March, 1872.

E. Griffith, J. P.

"This is a true copy of the affidavid of M. M. Lawrence when he swore a State warnt for his hors and the arrest of R. Byrnside.

"This the 4th of May, 1872.

"E. Griffith, j. P.

Warrant.

"West Virginia, Lincoln Cocjnty:

"To the Constable of Duval Township:

"Whereas, M.M. Lawrence, Boon county, hath this day mad complaint and information on oath before me, E. Griffith, a justice, that in the month of November 1871, in Boon county, one cream collerd white horse, white tail, main, glass eyes, white hoofs, was stolen of him, M. Lawrence, was feloneously taken stolen by C. C. Philup, carried away by A. G. Ball and he hath just caus to suspect and doth suspect that the said horse is in the possesion of R. Byrnsides: These are therefore to authorize you and require you in the name of the State of West Virginia, with necessary aid, to inter the possesioyi of the said R. Byrnsides and enter the stable in day time and ther dilligevitly sereh for the said horse, and if the same be found upon such surch, that you bring the said horse, also the boudy of the said R. Byrnsides, before me or some other justice of the said county to be dealt with according to law.

"Given under my hand this the 1st of March, 1872.

"E. Griffith,

"Justice oj Duval Township, IAncoln County, W. Va.

"This is a true copy of the warnt to the best of my judgment.

"E. Griffith, J. P.

"State of We. vs. R. Byrnsides.

"Judgment that M. M. Lawrence recover of of R. Byrnsides the said hors and costs which mounts to $3.65. "This the 2d March, 1872.

"E. Griffith, j. P.

" R. Byrnsides personly appear before me, E. Griffith, and made oat the said hors, M. M. Lawrence recovered off of him a stold hors he got said hors from P. Burdett.

"Given under my hand the 2th day of March, 1872.

" E. Griffith."

To the reading of which the defendant objected, but his objections were overruled by the court. The plaintiff then proved that he was arrested under the warrant aforesaid; that the horse was taken from his stable, and that he and the horse were taken the evening of the same day from plaintiff's house, in Putnam county, to the justice in Lincoln county. The plaintiff proved also that he bought in exchange for another horse the horse in controversy from the defendant; that the plaintiff was discharged by the justice, and that the horse, by the order of said justice, was delivered to the said Lawrence.

The defendant proved that he purchased said horse from Mr. Mynes, and that Mr. Mynes purchased him from Mr. Good, and that Good purchased said horse from Mr. Stowers. The defendant also proved that said Lawrence in the fall of 1870, admitted that said horse belonged to one Cope Philips. The defendant also proved that said Philips had sold said horse to Ball and Ball to Stowers. The defendant also proved that he lived only about two or two and a half miles from plaintiff. It was also proved that the plaintiff when arrested was taken by the constable in an opposite direction from the defendant's residence to the house of a justice in another county, Lincoln, and that he was tried on Saturday, the next day after he was arrested, and that the plaintiff notified the defendant on Monday morning after the judgment had been rendered against him, that said horse had been taken from him under the warrant aforesaid. It was also proven that the justice offered to give the plaintiff herein anew hearing within ten days after the judgment aforesaid bad been rendered, and that plaintiff declined to have judgment opened, stating that all he wanted was pay for his horse. It was also proven that the testimony before the justice warranted the judgment which he gave as to the ownership of the horse. It was also proven that the justice of Lincoln county, Griffith, told the plaintiff, Byrnside, when he was brought before him, that he had no right to try him on the warrant unless by his consent, and would send him back to his own county, Putnam, if he desired it; that Byrnside consented to the trial in Lincoln county, and after he was acquitted of the criminal charge in said warrant, he consented to the said justice to try on the same day the right of ownership of said horse between Lawrence and himself, without having any witnesses summoned on his own behalf, that the said justice asked Byrnside if he wanted a continuance of the case of the right of ownership in the horse, and that Byrnside said he did not. It was also proven that Byrnside gave no notice whatever...