
    PAUL BECHET v. MARGARET SMITHERS.
    
      Decided June 16, 1884.
    
      Sale—what constitutes.—Warranty of title—breach of.—Evidence.
    
    Plaintiff paid to defendant $750 in consideration of her agreement that plaintiff might have the option of buying certain land, for the sale of which to her defendant had a contract from the owner thereof, and upon which land there was certain machinery, the property of defendant. The agreement contained this clause: “ Should you decide not to purchase the said properties, then the $750 to be paid to me on the delivery of this letter, are forfeited by you and belong to me. You, however, can take the machinery on said properties, and dispose of the same at your pleasure. ” Defendant elected not to take the laud, but through his agent took possession of the machinery. In an action for breach of warranty of title to said machinery,
    
      Held, that there was an executed contract of sale of said machinery, and that defendant being in possession of the same at the time of the sale, a warranty of title is implied.
    
      Further held, that evidence that plaintiff at or before the time of making the agreement, stated that he desired only the land, and cared nothing for the machinery, was inadmissible to show that the transaction was not a sale of such machinery.
    
      But further held, that the mere fact that the property was shortly thereafter taken from plaintiff, in an action by a third party, which plaintiff called upon defendant to defend, does not prove a breach of said warranty of title, it not appearing that the title of the present defendant to the property was litigated in that action, and it affirmatively appearing in this action that said defendant had good title at the time of the sale.
    Before Sedgwick, Ch. J., and Truax, J.
    Defendant’s exceptions. ordered to be heard in first instance at general term, verdict being directed for plaintiff.
    Action to recover damages upon a breach of an implied warranty of title on a sale of certain machinery by the defendant to the plaintiff, under a contract in writing made between them in the city of New York.
    The machinery was at the time in the possession of defendant, on certain mining lands in North Carolina, for the sale of which to her, defendant held a contract from one Holmes, the owner thereof. The agreement of sale between the parties hereto was as follows :
    “ (1.) I grant you the option to purchase the above said properties, with all the machinery and buildings thereon, until the 5th of August next, for the sum of $10,000, $750 payable bn my delivery to you of the present letter, $4,050 to be paid as soon as you desire to purchase the said properties, on which payment I shall transfer to you the original bond, of which copy is annexed to the present. The balance of $5,200 to be paid to M. M. L. Holmes, of the county of Rowan, North Carolina, under the provisions of the annexed copy of bond, upon the delivery to you of a good title conveying said properties to you. (2.) In case you purchase said properties, you are to pay me one-fortieth part of the net proceeds of all the metal you extract from the ores of said Roseman Gold Mine Lot. (3.) Should you decide not to purchase the said properties, then the $750 to be paid to me on delivery of this letter are forfeited by you, and belong to me. You, however, can take possession of the machinery on said properties, and dispose of the same at your pleasure, and for your own benefit. (4.) Upon the payment of said $750 you have the right to examine the properties in question, to take from the same ores in such quantities as you may desire, said ores to belong to you, subject to the conditions of the annexed copy of bond.”
    Plaintiff paid the $750, and elected not to take the land, but, through his agent, took possession of the machinery. Shortly thereafter the machinery was taken from plaintiff’s agent by process in the nature of replevin, at suit of certain third parties, brought in North Carolina, in which said third parties established titlé to and took the property.
    The plaintiff in this action notified defendant of the pendency of said action, and requested her to defend it, which she did not do. The judgment roll in said action was put in evidence in this action.
    Rurther facts appear in the opinion.
    
      
      D. M. Porter, for plaintiff.
    
      George W. McAdam and Albert Matthews, for defendant.
    There was no “sale” of this “machinery and fixtures ” by the defendant to the plaintiff. The special agreement between them must be taken together, in all its parts, in order to determine its meaning and legal effect. It is a contract generis. The defendant contracts to allow the plaintiff certain “ privileges ” for the sum of $750; and further provides that, if he does not avail himself of them all, he shall “ forfeit,” as damages, the sum of $750, but he shall, however, have permission to take possession of the machinery and fixtures and dispose of the same at his pleasure and for his own benefit. The sum of $750 was intended to belong to the defendant, as her liquidated damages, if the plaintiff failed to complete that transaction (Slosson v. Beadly, 7 Johns. 72; Kemp v. Knickerbocker Ice Co., 69 N. Y. 58).
    Even if there had been a “sale” of these chattels by defendant to plaintiff and a “ warranty of title” of the same, there was clear proof that the chattels belonged of right to the defendant at the time of making the contract between her and the plaintiff, and a failure of proof of any kind that they belonged to any one else at that time. There is no pretense that she conveyed them, or gave any right over them to any person except the plaintiff.
    The North Carolina action did not appear to proceed on the ground that the defendants had not given a good title to the chattels in question, to the plaintiff in this action (Blasdale v. Babcock, 1 Johns. 518). Even if the judgment were admissible in evidence to the jury on the subjects of eviction of possession of the chattels in question, it was not conclusive, nor could it overcome the other positive evidence of the soundness of the defendant’s title at the time of the contract, without further evidence showing that her title had been litigated in the replevin suit now in question (McKnight v. Dunlop, 4 Barb. 36 ; Colwell v. Bleakley, 1 Keyes, 62 ; Kerr v. Hayes, 35 N. Y. 333 ; McKnight v. Devlin, 52 Id. 403 ; Railroad v. Elmore, 53 Id. 624; Remington Paper Co. v. O’Dougherty, 81 Id. 489).
    This judgment in' the replevin suit (being a possessory action) was rather like a judgment in ejectment by a claimant'against anothers’ tenant, and not binding upon the landlord who was not a party to the suit. As to this defendant it is res inter alios acta (Ryerss v. Ripley, 25 Wend. 432 ; Same v. Same, 4 Hill, 458, note; Leland v. Tousey, 6 Hill, 334-5; Ainslie v. Mayor, 1 Barb. 168; Thompson v. Clark, 4 Hun, 165; Bennett v. Leach, 25 Id. 178-9).
   By the Court.—Sedgwick, Ch. J.

The defendant made an agreement with the plaintiff, in consideration of which' the plaintiff paid her $750. The agreement was that the plaintiff might have the option of buying certain land upon which there was certain mining machinery belonging to the defendant. She did not own the land, but had a contract for its sale to her. The agreement had this clause, “ Should you decide not to purchase the said properties, then the $750 to be paid to me on the delivery of this letter are forfeited by you and belong to me. You, however, can take possession of the machinery on said properties and dispose of the same at your pleasure.”

I am of opinion that the transaction comprises the legal constituents of a sale of the machinery, and that there was a contract of sale, which was executed upon the plaintiff afterward taking, as he did take possession of the same. He elected not to take the land. The complaint alleges that at the time of the making of the contract the defend-ant was not in possession of the machinery. The answer seems to deny this. The proof shows that the defendant was, when she sold, in possession through her agent. The law implies a warranty by her of title.

This action is brought upon an allegation that she was without title, and therefore had made a breach of the warranty. The proof was clearly the other way, and that she had delivered possession to the plaintiff. The only proof that was used in attempting to show her want of title, was what was also used to show that the plaintiff had been deprived of possession. It was an action brought in North Carolina by third persons against the agent of the defendant (the plaintiff in this action), who held possession of the machinery for the said defendant, on the claim that they owned the property, and that the defendant in the action wrongfully withheld it. The plaintiffs had judgment in that action, and it was executed by the property being delivered to them. The plaintiff here gave notice to this defendant that the action in North Carolina had been begun, and demanded that she should defend it. This proves nothing. The jjresent defendant was not bound to defend that action, when the plaintiff’s agent had a full de.fense, if the issue were the defendant’s title at the time of the contract. And the evidence here shows such a defense, and that the defendant had title at the time of the contract. There was nothing even to show that the issue in the former action involved any claim in derogation of a claim of title in defendant at and before the making of the contract. From all that, it appears, the claim may have been made of title proceeding from this plaintiff.

The court refused to allow the defendant to prove that when the contract was made, before it was signed by defendant, the plaintiff said to her that all he cared for was the land, and that the machinery was of no consequence, and he cared nothing about them. I think the court was correct. His indifference to the machinery did not deprive him of the benefits of the contract as to it that was actually made. If at the time, the declaration had been made by the plaintiff that he knew the defendant had no title, or by the defendant that she had none, which could not have been declared under the facts, a différent question would be presented.

My opinion is that the exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs of the argument to abide the event.

Truax, J., concurred.  