Jarrett v. Goodnow
| Decision Date | 08 December 1894 |
| Citation | 20 S.E. 575,39 W.Va. 602 |
| Parties | JARRETT v. GOODNOW et al. |
| Court | West Virginia Supreme Court |
Submitted June 16, 1894.
Syllabus by the Court.
1. A party entitled to plead in an action at law the defenses specified in section 5, c. 126, Code 1891, need not plead them in the action, but may avail himself of them in equity without any excuse for not using them at law.
2. In sales of personal property by one in possession, there is an implied warranty of good title.
3. One selling personal property, knowing he has no title, and concealing that fact from the purchaser, is liable for fraud.
4. Though generally injunction does not lie against a judgment to let in setoffs, yet it will lie where the judgment creditor is insolvent.
Appeal from circuit court, Taylor county.
W. R D. Dent, for appellant.
John H Holt, for appellees.
BRANNON P.
Jarrett gave a promissory note to Newlon, which Newlon assigned to Goodnow, and Goodnow obtained a judg ment against Jarrett by default before a justice, and Jarrett obtained an injunction to restrain its collection; and the court having overruled a motion to dissolve the injunction and allowed an amended bill to be filed, and latter perpetuated the injunction, Goodnow appealed. There is not a single citation of authority in the briefs on either side, and we have not the benefit of this help.
One of the grounds on which the injunction rests is that the note on which the judgment was recovered was given for an engine boiler, and burrs, and that the consideration has wholly failed, inasmuch as Newlon had conveyed them to Durbin, trustee, to secure Newlon's creditors. Goodnow's counsel, in answer to this, contends that this defense ought to have been pleaded, at law to defeat the recovery of the judgment, and that it cannot be made the subject of equity jurisdiction. This position is not tenable, as section 5, c. 126, Code, would give jurisdiction to equity on the three grounds of failure of consideration, fraud in the procurance of the note, and that of breach of warranty of title to personal property, and section 6 expressly gives right to make defense at law or omit that and go to equity, as the debtor prefers, without giving any excuse for not defending at law. Bias v. Vickers, 27 W.Va. 456. When a sale of chattels is made, there is an implied warranty of good title by the vendor, where the goods are in vendor's possession. Byrnside v. Burdett, 15 W.Va. 702; Benj. Sales (6th Ed., by Bennett) § 627 et seq., and note 11, p. 631; full note to Scott v. Hix, 62 Am. Dec. 460; 2 Kent, Comm. 478. Some old English text-books lay down that there is no implied warranty of title, but Mr. Benjamin says no case was ever so decided there. That old rule, repugnant to reason, if it really existed, was long since "wellnigh eaten away," as Lord Campbell well said; and now it is settled in England that there is such implied warranty, and it is universally admitted in America. But there is no implied warranty of soundness or quality of goods sold. Mason v. Chappell, 15 Grat. 572; Benj. Sales, § 644, and note 13, p. 640. In this case the vendor, at the date of sale, had given a deed of trust on the property, and his warran ty was broken at once. He was also guilty of fraud in the sale. Benj. Sales, § 628 says, "If the vendor knew he had no title, and concealed that fact from the buyer, he would be liable on the ground of...
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