quality, but difference of kind; that there was a condition precedent, and not simply a warranty, and that the defendant was not bound to accept. On error, to the exchequer chamber, the judgment of the court below was unanimously confirmed, without hearing the defendant's counsel. Books and maps sold according to prospec tus. Sale of securities implied condition § 607. Lord Tenterden held, in two cases, (d) at nisi prius, that a vendor could not recover for books or maps sold by a description or prospectus, if there were any material difference between the book or map furnished and that described in the prospectus. Under this head may also properly be included the class of cases in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates, and other securities is bound, ine. not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit, or not marketable by the name or denomination used in describing it. (e) Thus, in Jones v. Ryde, (f) it was held that the that they are genu Jones v. (d) Paton v. Duncan, 3 C. & P. 336, and Teesdale v. Anderson, 4 C. & P. 198. In America implied war (e) [In many American cases this liability has been regarded as founded on an implied warranty. Thus it is held that on the sale of a promissory ranty in sale note, the law implies a warof securities. ranty that the signatures and indorsement upon it are made by persons who have capacity to make a valid contract, and are genuine. Thrall v. Newell, 19 Vt. 202; Lobdell v. Baker, 1 Met. 193; S. C. 3 Ib. 469; Terry v. Bissell, 26 Conn. 23; Cabot Bank v. Morton, 4 Gray, 156; Merriam v. Wolcott, 3 Allen, 258; Worthington v. Cowles, 112 Mass. 30; Markle v. Hatfield, 2 John. 455; Herrick v. Whitney, 15 Ib. 240; Shaver v. Ehle, 16 Ib. 201; Murray v. Judah, 6 Cowen, 484; Canal Bank v. Bank of Albany, 1 Hill (N. Y.), 287; Aldrich Jackson, 5 R. I. 218; Ledwich v. McKim, 53 N. Y. 307; Ross v. Terry, 63 Ib. 613; Webb v. Odell, 49 Ib. 583; Ellis v. Grooms, 1 Stewart, 47; Wilder v. Cowles, 100 Mass. 487. A distinction has sometimes been made between cases where Transfer for debt, and sale; alleged distinction. an innocent holder of negoti- vendor of a forged navy-bill was bound to return the money received for it. (g) In Young v. Cole, (h) the plaintiff, a Young v. stock-broker, was employed by the defendant to sell for Cole." him four Guatemala bonds, in April, 1836, and it was shown that in 1829 unstamped Guatemala bonds had been repudiated by the government of that state, and had ever since been not a marketable commodity on the stock exchange. The defendant received the price on the delivery of unstamped bonds, both parties being ignorant that a stamp was necessary. The unstamped bonds were valueless. Held that the defendant was bound to restore the price received; Tindal C. J. saying that the contract was for real Guatemala bonds, and that the case was just as if the contract had been to sell foreign coin, and the defendant had delivered counters instead. "It is not a question of warranty, but whether the defendant had not delivered something which, though resembling the article contracted to be sold, is of no value." In Westropp Westropp v. Solomon (i) the same rule was recognized; mon. and it was also held that in such cases nothing further was recoverable from the vendor than the purchase-money he had received, and that he was not responsible for the value of genuine shares. v. Solo Pooley v. § 608. In Gompertz v. Bartlett (k) the sale was of a foreign bill of exchange: it turned out that the bill was not a Gompertz foreign bill, and therefore worthless, because unstamped. v. Bartlett. The purchaser was held entitled to recover back the price, because the thing sold was not of the kind described in the sale. But in Pooley v. Brown, (1) where the plaintiff bought foreign bills from the defendant, and by the Stamp Act (m) it was the duty of the seller to cancel the stamp before he Brown. delivers, and of the buyer to see that this is done before he receives, and both parties neglected this duty, so that the buyer was unable to recover on the bills, Erle C. J. and Keating J. were of opinion that the buyer, who was equally in fault with the vendor under the law, could not avail himself of the principle laid down in Gompertz v. Bartlett; but Williams J. dissented on that point, though the court was unanimous in holding that the purchaser Womers ley. had by his own laches and delay lost all right to complain, under Gurney v. the special circumstance. In Gurney v. Womersley (n) a bill of exchange was sold to the plaintiffs, on which all the signatures were forged except that of the last indorser, who had forged all the preceding names, and Bramwell, for defendant, made a strenuous effort to distinguish the case, on the ground that in Jones v. Ryde and Young v. Cole, supra, the thing sold was entirely false and valueless; whereas in this case the last indorsers's signature was genuine, and the bill therefore of some value. But it was held that a party offering a bill for sale, offers in effect an instrument drawn, accepted, and indorsed according to its purport. Question of fact whether thing delivered is really what was intended by both parties. Lamert v. § 609. But it is a question for the jury, whether the thing delivered be what was really intended by both parties as the subject-matter of the sale, although not very accurately described. Thus, in Mitchell v. Newhall, (0) the sale was of “fifty shares," in a foreign railway company. The buyer refused to receive from the plaintiff, his stock-broker, delivery of a letter of allotment for Mitchell v. fifty shares. Held that he was bound by his bargain, Newhall. proof having been made to the satisfaction of the jury, that no shares in the railway had yet been issued, and that letters of allotment were commonly bought and sold as shares in this And in Lamert v. company on the stock exchange. Heath. Heath (p) it appeared that the defendant, a stockbroker, had bought for the plaintiff scrip certificates of shares in the Kentish Coast Railway Company. These scrip certificates were signed by the secretary, and issued from the offices of the company, and were the subject of sale and purchase in the market for several months, when the scheme was abandoned, and the company repudiated the scrip as not genuine, on the allegation that it was issued without authority. The plaintiff then sought to recover back the price from the stock-broker, on the ground that the latter had not delivered genuine scrip. But the court, without hearing argument on the other side, held the buyer bound by his bargain, the court saying: "If this was the only Kentish Coast (n) 4 E. & B. 133; 24 L. J. Q. B. 46; and see, also, Woodland v. Fear, 7 E. & B. 519; 26 L. J. Q. B. 202; and the remarks of Blackburn J. on the principle of the decisions in these cases, in Kennedy v. tion of power to Railway scrip in the market, and one person chooses to sell and the other to buy that, then the latter has got all that he contracted to buy." In Lamond v. Davall (q) it was Reservaheld that a sale was conditional, where the vendor had reserved power to resell on the buyer's default; that a resale on such default was a rescission of the original sale; and that the vendor could not, therefore, maintain assumpsit on it, his proper remedy being an action for damages for the loss and expenses of the resale. (q) 9 Q. B. 1030. resell on fault ren buyer's de ders sale condi tional. |