Callanan v. Brown & Co.

Miller, J. — I. We will first dispose of the questions involved in the ruling on the demurrer to the petition. ^municipal corporations, 1. The bonds described in the petition are personal property. This has been the holding of nearly all cases ^ which ^the question has been made; and being evidences of debt, they are in Iowa declared to be personal property, by express statutory provision, as follows: “ The words ‘ personal property’ include money, goods, chattels, evidences of debt, and things in action.” Dev., subd. 9 of § 29. 2. This class of securities, by the form in which they are issued and the mode of giving them circulation, , being negotiable by delivery, and bought and sold in the money and stock markets of the country, are held by an almost unanimous current of adjudications to be a class of negotiable securities. White v. Vermont & Mass. R. Co., 21 How. 575; Delafield v. State of Illinois, 2 Hill, 160; Morris Canal Co. v. Fisher, 1 Stoct. 667; Carr v. Le Fever, 27 Penn. 413; Craig v. The City of Vicksburg, 31 Miss. 216; Mercer Co. v. Hackett, 1 Wall. (U. S.) 95 ; Commissioners of Knox County v. Aspinwall, 21 How. (U. S.) 539 ; Gelpcke v. City of Dubuque, 1 Wall. (U. S.) 175 ; Dunham v. Cin., Peru, etc., R. Co., id. 254; Myer [338] v. City of Muscatine, id. 334, and many other eases that could be cited. 2. warranty : bonds.01 °ity 3. These securities, as we have seen, are under the law personal property, and the transactions stated in the petition of plaintiff show a sale of this species of property by the defendants to the plaintiff. The same rules of law, therefore, which are applicable to sales of other kinds of personal property, under like circumstances, must be applied in this case. It was a sale of personal property with what is claimed amounted to a warranty of the quality or value of the article sold. Do the facts alleged constitute a warranty ? We are of opinion that they do. In order to constitute a warranty it is not essential that the word “ warrant ” be used. Any distinct assertion or affirmation of quality made by the seller during a' negotiation for a sale of chattels, which it may be supposed was intended to effectuate the sale, and was operative in effecting it, will constitute a warranty. Hughes v. Funston & Smith, 23 Iowa, 257; 1 Parsons on Cont. 579, 580, and authorities there cited. Nor is it essential that any other word of precisely the same meaning as “warrant” should be used. It is enough if the words actually used import an undertaking on the part of the owner that the chattel is what he represents it to be. 1 Parsons on Contracts, supra. Such an undertaking when made and relied on by tlie purchaser is as'much a warranty as if the term “ warrant ” itself had been used. The plaintiff here avers that,, in the sale of the bonds described in the petition, “ the defendants agreed that the principad and interest of the bonds' was or should be guaranteed and provided for by a sinking fund set aside for that purpose ” by the obligor in the bond, the City of Memphis ; “that such representations and agreement for the securing of said bonds was a material part of the contract,” etc. Here is an express, agreement alleged, that the bonds should be or were secured by an adequate fund for [339] the ultimate payment thereof, both principal and interest. This is as much a warranty as if the language had been : “ we warrant that such a fund shall be provided.” The allegation is to the effect that the defendants undertook that the bonds were or should be secured in a particular manner, and, consequently, of greater value than unsecured bonds. i. — acceptanee of property. II. But it is insisted that, as the plaintiff accepted the bonds, such acceptance was a waiver of the warranty, and a satisfaction of the contract. The law is well _ - . _ settled that, m sales ox personal pi'operty with warranty, the purchaser may retain the goods and bring his action for damages on a breach of warranty. 1 Parsons on Cont. (5th ed.) 591,592, and note 7c/ Sedgwick on Meas, of Dam. 319, and cases cited. Some of the cases hold that the vendee may, at his election, bring his action at once on the warranty; or he may return the goods forthwith and sue for the price if he has paid it. Fielding v. Starkin, 1 H. Black. 17; Kellogg v. Denslow, 14 Conn. 411; Waring v. Mason, 18 Wend. 425 ; Thompson v. Botts, 8 Mo. 710; Borekins v. Bevan, 3 Rawle, 23; Carter v. Stennel, 10 B. Monr. 250; Milton v. Rowland, 11 Ala. 732; Ferguson v. Oliver, 8 Smeed. and Marsh. 332; Franklin v. Long, 7 Gill, and Johns. 407. While others hold, and Mr. Sedgwick says, that “ the better opinion seems now to be, that where there is no fraud and no agreement to return, the vendee cannot at his option rescind the contract, but has only his action on the warranty. Sedgwick on Meas. of Dam. 319; Voorhees v. Earl, 2 Hill, 288; West v. Cutting, 19 Vt. 536; Thornton v. Wynn, 12 Wheat. 183. All the authorities agreeing, however, that the vendee may retain the goods and bring his action on the wai-ranty. The authorities cited by appellant in support of his position apply to mere executory contracts where the chattels may generally be returned as soon as they are found not to satisfy the contract, and have no application to' the [340] case before tis, wbicb is a completed sale with warranty, and not such as that the property could have been returned immediately or-rejected, for the alleged agreement of defendants was not that the bonds on their face should show that they were secured by a special fund. The bonds on their face did not notify the plaintiff of - any non-compliance by defendants with their agreement that the bonds should be secured by a special fund for their payment, and an acceptance of the bonds was no waiver of the alleged breach of warranty. 5_measure of damages. III. The plaintiff claims as damages the difference between the market value of bonds, such as were in fact deINered, and the market value of bonds secured ]jy a Speciai fond for their payment, in accordance with defendant’s warranty. He says the bonds would, in the market, have been worth one hundred cents on the nominal dollar thereof, if the defendants had kept their agreement good; that the bonds actually delivered are only worth half that sum in the market, and he asks a judgment for the difference, with interest. While there has been great fluctuations of judicial opinion on the question of the measure of damages in cases of breach of warranty in the sale of personal property, Mr. Sedgwick states, as the result of the cases, that “ the true measure of damages is the difference between the value which the thing sold would have had at the time of the sale, if it had been sound or corresponding with the warranty, and its actual value with the defect.” Sedg. on Meas, of Dam. 324. See also in support of this rule, Van Allen v. Ill. Central R. Co., 1 Bosw. 515 ; Simpkins v. Low, 49 Barb. 382; Cary v. Gruman, 4 Hill, 625; Comstock v. Hutchinson, 10 Barb. 211; Thornton v. Thompson, 4 Gratt. 121; Woodward v. Thacher, 21 Vt. 580; Marshall v. Wood, 16 Ala. 806 ; Slaughter v. McRae, 3 La. Ann. 455; Borrekin v. Bevans, 3 Rawle, 23; Roberts v. Carter, 28 Barb. 462. There are many other [341] cases holding the same rule, while some of the earlier cases hold the measure of damages to be the difference between the price paid, or to be paid, and the real value. The rule, as stated by Mr. Sedgwick, and contended for by the plaintiff, has been adopted by this court. In Hahn v. Cummings, 3 Iowa, 583, the defendant pointed out and pretended to sell plaintiff one tract of land, and fraudulently conveyed to him another, and it was held that the measure of damages was the difference between the two pieces of land. In Lacy v. Straughan, 11 Iowa, 258, which was an action upon a breach. of warranty of the soundness of a horse, the measure of damages was held to be the difference between the value of the horse answering the warranted chai'aeter and its value at the sale in the condition in which he really was. Likes v. Baer, 8 Iowa, 368 ; Gates v. Reynolds, 13 id. 1; and Morberby v. Alexander, 19 id. 162, affirms the rule laid down in Hahn v. Cummings, supra. 6-_commer-ciai paper, IY. As to the ruling of the court below, sustaining plaintiff’s demurrer to defendant’s cross demand, we are of opinion that it was correct. While the tnéasure of damages for the wrongful conversion of negotiable paper is prima facie the sum recoverable thereon, yet the real or market value may be shown by showing the insolvency of the maker or obligor, and the measure of damages will then not exceed such real or market value. Potter v. Merchants Bank, 28 N. Y. 655. In the ease before iis, the defendants show by their pleading that the bonds alleged to have been wrongfully withheld by plaintiff are only worth in the market fifty per centum of their nominal value, and that they have received that amount from the plaintiff therefor. From the showing of their pleading they have not suffered any injury, and, consequently, have no right to recover damages. The judgment of the court below is Affirmed.