Marshall v. Morgan

The opinion of the court was delivered by Royce, Ch. J. This was an action of general and special assumpsit, brought to recover the balance due on a contract of sale made by the plaintiff as the assignee of Peter Fagan. Pleas of general issue, and a special plea and plea in offset; trial by the court. In .the sale made by the plaintiff there were included certain book accounts, which the court found had either been paid before the assignment, or were charged by the assignor against a party who was not at the time the charge was made, or when the sale was made, indebted to the assignor. There was no express warranty of title made by the plaintiff at the time the contract of sale was entered into; and [63] the contention has been as to the legal effect of said sale as applicable to said accounts. It was decided in Kingsley v. Fitts & Avery, 55 Vt. 293, and Gilchrist v. Hilliard, 53 Id. 592, that in the sale of accounts there is an implied warranty that they are due and owing, and that the vendor must make them what they appear to be. This case clearly comes within that rule, unless it is distinguishable by reason of this sale having been made by an assignee. There is no implied warranty of title in a sale made by a public officer. It is claimed that the plaintiff, while acting as the assignee of Fagan, was a public officer, and that in the sale made by him there was no implied warranty of title; and that, inasmuch as there was no express warranty, the plaintiff is entitled to recover. It is doubtful if an assignee, chosen and appointed by the assignor, and empowered by him to take and dispose of his property for the purposes designated by him, should be treated as a public officer in the sense in which the term is used in the cases in which it has been held he could not be made liable upon an implied warranty of title. He is a quasi-agent of the assignor, and derives his authority from him, and can only be regarded as a public officer on account of his amenability to the court that is charged with .the duty of compelling a faithful discharge of the duties imposed upon him by the assignor. In most, if not all, of the cases to which we have been referred in support of the claim made by the plaintiff, the office was an elective one, or the officer had been appointed by some court. But it is not necessary to place our decision on that ground. .The implied warranty that the elementary books and adjudged cases treat of, in considering the question of the liability of officers, is one of title. It has never, to our knowledge, been held that an officer was exempt from lia [64] bility when it was shown that the property which he professed to sell had no existence in fact as property at the time the sale was made. In Benjamin on Sales, chap. 4, sec. 75, it is said there can be no sale without a thing transferred to the purchaser in consideration of the price received, or the promise of payment, and that if at the time the thing had ceased to exist, the sale is void. In such a case, there being no subject matter to contract in relation to, there can be no enforceable contract in reference to it made. Here it is found that the accounts that the plaintiff claims to recover for were fictitious; that, though they appeared on the inventory furnished to the vendee, they were wrongfully entered there, and that in legal effect there were no such accounts. The assignee is not relieved from the obligation that the law generally imposes upon vendors, to show that the property existed which constituted the consideration for the promise sought to be enforced, by reason of the character in which he made the sale. There is no error of law apparent in the rule adopted by the court in assessing the damages, and the judgment is affirmed.