Hood v. Warren

GARDNER, J. This suit was originally filed by R. B. Hood and E. B, Raley against the defendants as individuals' and as members of the firm of Warren, Killiam & Cox, but was amended during the progress of the trial by striking Raley as a party plaintiff thereto, leaving R. B. Hood as the sole plaintiff in the cause. Some of the counts were for deceit in the sale of certain hogs, which it is alleged the defendants knew to be unsound, and c-ount S was for broach of warranty in that defendants warranted the hogs to be in good condition, which was not the case. There was verdict and judgment for the defendants, from which plaintiff prosecutes this appeal. [1] The questions argued by counsel for appellant relate largely to matters of evi■deuce, but tbe conclusion which we have reached renders their consideration unnecessary. The evidence was without dispute that the actual purchase of the hogs was made by E. B. Raley, representing liimself and R. B. Hood; Raley testifying upon this point: “We bought the hogs as partners.” Soon .thereafter Raley sold his half interest in the hogs to Hood, but tbe sale of his interest in the hogs to Hood did not affect his right to maintain an action on the breach of warranty. 24 R. O. B. §§ 432, 516. The common-law doctrine of covenants running with the land applies only to real estate, and it is well settled as a common-law rule that the benefit of a warranty does not run with the chattel on its resale, so as to give the sub-purchaser any right of action thereon as against the original seller. Section 432, R. O. R., supra. Therefore Raley, by the mere sale of his' interest in the hogs to Hood, passed no right of action to the latter, but it remained in the firm or in the two as partners. [2] As previously shown, the cause proceeded to trial with R. B. 1-Iood as a party plaintiff, and nothing appears in the instant ease to take it from without the general rule that a partner cannot sue alone for his share in a firm claim. 30 Cyc. 563; Bigelow v. Reynolds, 68 Mich. 344, 36 N. W. 95; Vinal v. West. Va. Oil & Land Co., 110 U. S. 215, 4 Sup. Ct. 4, 28 L. Ed. 124. [3] Upon the undisputed proof therefore, the court would have been justified in giving the affirmative charge for the defendants as requested, and, such being the situation, if any errors were committed they were without prejudicial effect and should not operate as a reversal. It results that the judgment appealed from will be affirmed. Affirmed. ANDERSON, O. J., and SAYRE and BROWN, JJ., concur.