Carman v. Trude

By the court, Davis, Justice. This action was brought to recover the purchase price of property sold by plaintifi to defendant. Amongst the property sold was a patent meat safe or ice house, which, as appears from the evidence, was sold at $90. Of this price the defendant paid [444] to plaintiff $65, leaving $25 unpaid; which last named sum the defendant agreed to repay to one Hensler, who was the owner of the patent right. The sale of the safe was an absolute and unconditional one, and purported to transfer to the defendant a perfect title to the property, with the right to use the same. At the time of the sale, the plaintiff represented to defendant that he was owing to Hensler the sum of $25 for the right to use the safe, and requested him to pay that debt as part of the purchase price ; which he agreed to do. When, Hensler afterwards called for his pay, it was disclosed by him to defendant that the $25 was to be paid for one year’s use of the right, and that the agreement between himself and plaintiff was, that if plaintiff used the safe beyond the year, he should pay $25 more for,the full right. The defendant, on learning these facts, refused to pay the $25 remaining unpaid on the safe, and the plaintiff brought this action to recover that with other indebtedness. The sale being an absolute and unqualified one, there was an implied warranty by the vendor of title in himself, both of the property and of the right to use it. (Dresser agt. Ainsworth, 9 Barb., 625, and cases there cited.) It was satisfactorily shown on the trial that the plaintiff’s right of use was for the current year only. The defendant got that right by his purchase, in addition to the property in the materials of which the safe was constructed, but he got nothing more. The plaintiff’s own testimony shows that he owned nothing more which he could sell. There was, therefore, a clear breach of the implied warranty, and there was no necessity in the case for a rescission of the contract or an eviction. The defendant was entitled to enjoy the right of use which plaintiff had transferred to him. This right was quite independent of the property in the safe itself. That passed absolutely, and so did the right so far as it existed; but [445] the warranty, so far as it applied to the right, was that it was perpetual and unconditional. The defendant was not bound to return the safe nor to surrender the brief right of úse which he had received from the plaintiff; nor, in my opinion, was he bound to delay till after the expiration of the year, to see whether the patentee would interfere with its further use. When he was sued for the purchase price of an unlimited right of use, he was entitled to show in defence that no such right was transferred to him, and to have deducted from the purchase price the difference between the value of the right actually transferred and the one warranted to exist. This question is quite distinct from one of fraud, and stands upon altogether different principles. When it was conceded -by the plaintiff that he owned only the right to use the safe for a single year, the breach of his warranty was shown; and the remaining fact to be established, in order to entitle defendant to a deduction from the purchase price, was the amount of damages. The evidence before the justice was of a character, it seems to me, which fixed the true rule ; although the case seems not to have been tried with regard to the true principles that govern it. It was shown that the price of a perpetual right to use the safe was $50 ; that an arrangement existed between the owner of the patent and plaintiff, by which the right should be made perpetual after the expiration of the year, on payment of $25 more. The defendant had paid, on the purchase price of the safe, $25 to plaintiff as part of the price of the alleged right of use, and just this amount was subsequently paid by plaintiff to the owner of the right in payment for the year’s use. These facts, I think, were sufficient to show that defendant’s measure of damages for breach of the warranty was $25, because they show that he could make his right perpetual by the payment of that sum. And I think he should have been allowed that sum by the jus [446] tice, as a' deduction from or extinguishment of that part of plaintiff's demand. It appears from the returns that the justice did not allow that sum ; and I think it sufficiently appears that he allowed no damages on this claim of defendant. The justice evidently allowed to plaintiff, on his own testimony, $15 for the pork and $25 for the safe, from which he deducted the $1.60 balance of gas bill paid by defendant, and to the remainder added a small amount of interest to make up his judgment. From the view I have taken of the case, I arrive at the same conclusion with the learned county judge, though for different reasons, and am of opinion that the judgment of the county court should be affirmed. Judgment affirmed.