
    Smith v. Ruggles.
    
      (Supreme Court, General Term,, Second Department.
    
    December 13,1888.)
    
      X. Sale—Failure oe Title—Notice to Purchaser—Evidence.
    In an action by the purchaser against the seller of a horse, for failure of title, the horse having been seized under a mortgage executed by K., a former owner, defendant alleged that K. was plaintiff’s partner and agent in the purchase, and that the latter was bound by his knowledge of the mortgage. Plaintiff testified that while K. was present, and assisted in the negotiation, he did so only as plaintiff’s adviser, and that the purchase was solely for plaintiff’s benefit. In this he was corroborated by the purchase-money receipts. He also stated that he afterwards sold a half interest in the horse to K.’s wife, but took it back when the title was brought into question. Defendant testified that the sale was made to both plaintiff and K. The latter corroborated defendant, and stated that after the seizure was threatened plaintiff purchased his half interest, and agreed to assume the mortgage. Meld, that the evidence supported a verdict for plaintiff.
    ■2. Same—Implied Warranty—Title in Seller.
    The sale of personal property implies a warranty of title in the seller.
    
    .3. Trial—Statements oe Counsel—Withdrawal—Instructions.
    It is not error for the trial judge to refuse to require counsel to withdraw an erroneous statement upon a question of law, made in his argument, when the opposing counsel is informed that he can have a proper instruction on the proposition of law, and he requests none.
    Appeal from circuit court, Westchester county.
    Action by Frederick J. Smith against James H. Buggies, to recover the •price paid for a horse sold by defendant to plaintiff, which had been taken from plaintiff by virtue of a mortgage executed on the horse by II. C. Kughler, a former owner. The plaintiff testified that he bought the horse for him.self alone, but at the instance of Kughler, who said he once owned it, and recommended it to him. Kughler was present at the purchase, and plaintiff .stated that he was guided by Kughler’s opinion as to its value, etc., and Kughler afterwards paid part of the purchase money for plaintiff, and took a receipt, which recited that the horse was sold to plaintiff, without mentioning Kughler as a purchaser. The receipt for the first payment also referred -only to Smith as the purchaser. Kughler had been a horse-dealer, but plaintiff had not been associated with him in the business. A short time after plaintiff bought the horse he sold a half interest in it to Kughler’s wife, but denied that Kughler liad any interest in it. After learning of the trouble with the title, he took the half interest back from Mrs. Kughler. Plaintiff stated that until the horse was seized he never heard of any claim against it, and never agreed to assume any such claim. Defendant testified that he understood from both plaintiff and Kughler that they were purchasing the horse jointly; that Kughler did most of the talking during the transaction. The price agreed on was $350, of which plaintiff paid him $50, and afterwards paid $125, and at the same time Kughler offered a check as part payment, which defendant refused. Afterwards, Kughler paid him $175, the residue of the price, and the horse was delivered to him. Kughler testified that he took the horse away from New Jersey, where it was when the mortgage was given, by the consent of the mortgagee, and sold it. He also stated that he and plaintiff had never dealt in horses together, but that the arrangement between them was that they should buy the horse jointly, and that he paid half the purchase money. He further stated that he trotted the horse at different places until the seizure, and that about that time he informed the plaintiff of the mortgage, and that plaintiff bought his interest, and paid him for it, and assumed the mortgage. Another witness (Palmer) also testified that plaintiff assumed the mortgage, and that he knew that plaintiff and Kughler had divided money won at races. Defendant moved for a nonsuit, on the ground that a partnership existed between plaintiff and Kughler, and that Kughler being" plaintiff’s agent in the transaction, and having knowledge oí the mortgage, plaintiff was bound thereby. This motion was overruled. In his argument-plaintiff’s counsel alluded to Kughler’s conduct in selling the horse, and re-moving it from New Jersey, as, in the absence of proof, the laws of New Jersey would be presumed the same as those of New York in that particular. Defendant’s counsel asked the court to require a withdrawal of the language, which the court refused to do, saying that it was beyond his power, but that-he would give any proper instruction plaintiff might desire on that question. Plaintiff did not ask any instruction. The jury found for plaintiff, and defendant appeals.
    Argued before Barnard, P. J., ahd Dykman and Pratt, JJ.
    
      A. C. Aubery, for appellant. Frederick M. Littlefield, for respondent.
    
      
      For a discussion of the doctrine of implied warranty of title on sales of chattels, and .a citation of the authorities on the subject, see sections 20,21, of the exhaustive note to Reynolds v. Palmer, 21 Fed. Rep. 433,
    
   Barnard, P. J.

The complaint avers the sale of a horse by defendant to plaintiff, with a warranty of title, and that the title failed; that the horse was-taken from plaintiff’s possession by virtue of a mortgage given by one Kugh-ler, who owned the horse when the mortgage was given. The answer avers-that the sale was made to Smith (plaintiff) and Kughler as partners; that there was no warranty of title; but admits the taking of the horse by force of the Kughler mortgage. The warranty of title was to be inferred from the sale-of the horse, and warranty of title is implied from the sale itself. McKnight v. Devlin, 52 N. Y. 399.

As to the question whether the sale was made to Smith and Kughler, and' whether Kughler was the agent of Smith in the purchase, the evidence conflicts. The plaintiff says that he bought the horse, and paid for the same. The form of the receipts support him, but Kughler was by, and in fact handed a part of the purchase price to defendant, and it was through Kughler that plaintiff obtained information that defendant had the horse for sale. It was proven that subsequently to the purchase the plaintiff conveyed one-half of the horse to Kughler’s wife, and subsequently took the title back after he heard that there was a dispute as to the title. The defendant simply states that both Smith and Kughler said they were buying the horse together; but Kughler states that in fact the horse was bought by himself and Smith, and that Smith bought one-half of him (Kughler) after he was informed by Kughler of the existence of the mortgage which took the horse. This seems so unreasonable that a finding of the jury against its credibility will not be disturbed! on appeal. The question of fact must be deemed settled by the verdict. The-exceptions are not sufficient to call for a reversal. The paramount title was. admitted.

It was improper to receive evidence of what induced the defendant to write on the receipt, “Purchased by Smith. ” The facts could be proven, and they were-fully received. The same canbesaid in respect to the striking out of the words, “for his half of the horse.” Whatever was said and done was to be received. What was inferred from what was said or done was to be excluded. This was. for the jury to find. The contents of the telegraphic dispatch sent by Kughler to-Bridgeport was not admissible against the plaintiff. It was an act between strangers to thq record. The plaintiff’s counsel probably made an inconsistent, statement upon a collateral question, namely, whether the statute law of another state is presumed to be the same as one in this state upon a given subject, and the defendant asked the court to compel the counsel to withdraw the statement. The court offered to charge what the law really was on the-subject, if requested, and declined to do more. Ho request was made, and the matter was permitted to drop. This furnishes no error upon which to-review the judgment. The judgment should therefore be affirmed, with costs. All concur.  