Jordan v. Duzee

• Court: Minnesota Supreme Court
• Writing for the Court: BROWN, C.J.
• Citation: Jordan v. Duzee, 165 N.W. 877, 139 Minn. 103 (Minn. 1917)
• Decision Date: 28 December 1917
• Docket Number: 20,671
• Parties: W. G. JORDAN v. C. E. VAN DUZEE

165 N.W. 877

139 Minn. 103

W. G. JORDAN v. C. E. VAN DUZEE

No. 20,671

Supreme Court of Minnesota

December 28, 1917

Action in the municipal court of Minneapolis to recover $325, the value of a Burroughs adding machine. The answer denied specifically that defendant ever owned or sold plaintiff a Burroughs adding machine or that any adding machine was part of the property of the Superior Electric Manufacturing Company; alleged that if the adding machine had been any part of the property of said Superior Electric Manufacturing Company at said time, it was duly reserved under the terms of the agreement of December 28, 1914, and was never sold to plaintiff at any time, and alleged that if plaintiff delivered any adding machine to the Burroughs Adding Machine Company it was so done voluntarily, and not as alleged in the complaint. The case was tried before Charles L. Smith, J who denied defendant's motions for a directed verdict and a jury which returned a verdict for $300. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.

SYLLABUS

Sale -- implied warranty of title.

1. There is an implied warranty of title applicable, in the absence of an express warranty, to all sales of personal property by the person in possession who assumes the right to sell it as his own.

Sale -- waiver of breach of warranty.

2. There is no waiver of a breach of such a warranty where the vendee, without coercion by judicial process, on demand surrenders the property to the holder of a title superior and paramount to that of his vendor.

Sale -- adverse title -- burden of proof on vendee.

3. The vendee may in such case determine the validity of an outstanding title in his own way, but has the burden of establishing the same when necessary to support an action against his vendor for a breach of the warranty of title.

Contract -- description of property sold -- verdict sustained by evidence.

4. The evidence held to justify a finding by the jury that an adding machine was included within the general description of the property transferred by the contract involved in this action.

Pleading -- evidence.

5. The complaint states a cause of action and the evidence justifies the verdict.

Trafford N. Jayne, for appellant.

J. H. Morse, for respondent.

OPINION

BROWN, C.J.

The facts in this case briefly stated are as follows: By a contract between the parties of date December 28, 1914, defendant, who was engaged in business under the name of Superior Electric Manufacturing Company, sold and delivered to plaintiff certain personal property, then being upon and within the premises and place of business of the company, and described in the written contract of sale substantially in the following language:

All the business and good will of said Superior Electric Manufacturing Company, including all machinery, furniture, fixtures, material and equipment of said company, except certain furniture and a typewriter and desk in that part of the premises occupied by defendant as a private office, and certain specified stock and material, and also certain dies and printing material belonging to the Bing Manufacturing Company.

At the time the contract was entered into, and when the premises and property were turned over and delivered to plaintiff, there was among the various items of property forming the equipment of the company an adding machine of the alleged value of $325. This machine was subsequently claimed by the Burroughs Adding Machine Company, the manufacturer thereof, and after due inquiry into the merits of the claim plaintiff surrendered the machine upon its demand therefor. Plaintiff thereafter brought this action to recover the value of the machine, as for the alleged breach of defendant's warranty of title. He had a verdict in the court below, and defendant appealed from an order denying his alternative motion for judgment or a new trial.

It is contended by defendant: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the evidence does not justify a finding that the adding machine was included in the sale to plaintiff of the electric company equipment; (3) if the evidence be held sufficient to justify such a finding, then that plaintiff waived any right to complain of the failure of title by voluntarily surrendering the machine to the Burroughs Company; and (4) that the court erred in not granting a new trial on the ground of newly discovered evidence.

1. We discover no substantial objection to the complaint. Properly construed it alleges the sale and delivery to plaintiff of the property and equipment of the electric company, with a warranty of title; that the adding machine was included in and was a part of the property so sold though it was not in fact the property of defendant, but belonged to the Burroughs Company; that upon demand by that company plaintiff surrendered the possession of the machine, to his damage in the sum of $325, the alleged value thereof. The facts so pleaded clearly show a right of action for the breach of defendant's warranty of title to the machine. The action is in contract, not in tort, and allegations of fraud and deceit are unnecessary. And though the complaint contains no allegations showing an express warranty of title, by representations to that effect, the case as made by the allegations stated, as well as by the evidence given at the trial, is controlled by the rule of implied warranty applicable, in the absence of an express warranty, to all sales made by the person in possession of personal property, who assumes the right to and does sell it as his own. Davis v. Smith, 7 Minn. 328 (414); Close v. Crossland, 47 Minn. 500, 50 N.W. 694; ...