Flynn v. Allen
| Decision Date | 30 March 1868 |
| Parties | Flynn <I>versus</I> Allen. |
| Court | Pennsylvania Supreme Court |
Before STRONG, READ, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius
Error to the Court of Common Pleas of Potter county: No. 456, to January Term 1868.
R. Brown, for plaintiff in error, cited the Act of March 15th 1865, supra; Egan v. Call, 10 Casey 236; McFarland v. Newman, 9 Watts 55; Evans v. Dela, 11 Casey 451; Ritchie v. Summers, 3 Yeates 351.
A. G. Olmstead, for defendant in error, cited Act of 1865, supra; Debolt v. Dunkard School Dist., 3 P. F. Smith 214; Swanzey v. Parker, 14 Wright 441; Coolidge v. Brigham, 1 Met. 547; 5 Id. 68; Story on Cont., § 411; Stroh v. Hess, 1 W. & S. 153; Frantz v. Brown, 1 Penna. R. 257; Kauffelt v. Leber, 9 W. & S. 93; Boyd v. Bopst, 2 Dallas 91; Dorsey v. Jackman, 1 S. & R. 48; Perley v. Balch, 23 Pick. 283; Borrekins v. Bevan, 3 Rawle 39; Christy v. Cummings, 3 McLean 386.
The opinion of the court was delivered, March 30th 1868, by SHARSWOOD, J.
The doctrine that the vendor of chattels in possession impliedly warrants the title, extends to choses in action: Ritchie v. Summers, 3 Yeates 531; Charnley v. Dulles, 8 W. & S. 361; Swanzey v. Parker, 14 Wright 450. As in the sale of other things, he undertakes not for their quality, that they are really worth the money they represent, but that they are what they purport to be. In other words, he warrants the genuineness of the claim upon them: Lyons v. Divelbis, 10 Harris 185. Every obligee or holder of an obligation, who assigns it to another, especially if he does so for a valuable consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assignment, all the facts and circumstances connected with the execution and delivery of the obligation; and, after being thus advised, the assignee agrees to take it at his own risk: Stroh v. Hess, 1 W. & S. 153. If the assignee of a bond cannot recover it from the obligor by reason of the consideration of it having failed before the assignment of it was made, he may recover back from the assignor the money he paid for the assignment, whether he hold his guaranty or not: Kauffelt v. Leber, 9 W. & S. 93. Like other warranties of title, as of seisin or right to convey, it is broken as soon as it is made, if in point of fact it is not a valid security. The assignee need not wait until it is due before bringing suit. His right of action accrues immediately: Holden v. Taylor, Hob. 12; Bender v. Fromberger, 4 Dallas 438; Stewart v. West, 2 Harris 336. Nor is it necessary to tender a return of the security before the commencement of the action: Ritchie v. Summers, 3 Yeates 531; Fielder v. Starkin, 1 H. Blacks. 19. This was a special action on the implied warranty, and not for money had and received, founded on a rescission of the contract, in which the rule may be different. The second count in the declaration sets forth the warranty without any allegation of an offer to return the bonds to the defendant. Indeed, though this point is presented in the printed argument of the plaintiff, it does not appear to have been made in the court below, nor is it contained in any of the errors assigned. These principles dispose of the 2d, 3d and 5th assignments of error, and so much of the 6th as relates to the refusal of the court to charge as requested in the 6th point of the defendant below.
It remains to consider whether the obligations or bonds of the school directors of Jackson district, of Potter county, which had been sold and delivered by the plaintiff in error to the defendant, were legal and valid securities, binding upon the school district, by whose authorities they were executed. They were issued under the Act of March 15th 1865, Pamph. L. 24, entitled "A further supplement to an act relating to the payment of bounties to volunteers," approved March 25th 1864. After enacting that the authorities mentioned in the act to which it was a supplement should have power "to raise a sufficient sum to pay a bounty to each volunteer enlisted under the present call or who may hereafter be...
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