
    Minnie English, Resp’t v. Joel Hanford, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1894,)
    
    1. Warranty—Fraud.
    Where an action is treated in the trial court, as one upon a warranty and damages are sought to be recovered for its breach, a verdict for plaintiff cannot be sustained on the ground of fraud.
    2. Same—When action tor will lie.
    No action will lie on a warranty unless the title has fully passed to the buyer.
    Appeal from a judgment entered in Tompkins county on the 5tli day of November, 1892, and also from an order denying a motion for a netv trial entered on the 9th day of October, 1893. At the circuit the jury rendered a verdict for the plaintiff in the sum of $70.00 damages. Plaintiff in her complaint alleges that in August, 1887, “she was induced by the defendant to purchase of him an Ithaca organ No. , upon representations by the defendant that said organ was new and first-class in every particular, and Avliich plaintiff believed and relied upon. That defendant, for the purchase price of said organ, induced plaintiff to make her promissory note to him for sixty-five dollars, after obtaining ten dollars cash down.” Her complaint also contains the following allegation: “That defendant now has, by reason of his fraud, deception and misrepresentations, and breach of warranty to plaintiff, forty-six dollars of plaintiff's money, besides said organ, and plaintiff’s note, upon which there is due and unpaid about twenty-five dollars. That by reason of the foregoing, defendant was guilty of a gross fraud, constituting a breach of warranty of •said organ to plaintiff's damage in the sum of one hundred and fifty dollars.” The answer contains a denial of the allegations of the complaint and sets up that the defendant delivered to the plaintiff an organ “ upon the express agreement that the plaintiff should pay to defendant on account thereof the sum of sixty-five dollars, in monthly payments of five dollars on the first day of each month; and that when the said sum of sixty-five dollars, with annual interest thereon should be paid, the said organ should become the property of the plaintiff; and that until said sum of sixty-five dollars and interest should be so paid, the title thereto remained in the defendant with the right on his part, to retake the said organ out of the possession of the plaintiff, on default of payment, as above specified.” The answer of the defendant contains the further allegation, to wit: “That the said agreement for conditional sale was duly rescinded, and in or about the month of August, 1892, the defendant retook from the plaintiff by process -of law, the possession of the said organ, pursuant to the terms of the agreement aforesaid.”
    
      Jared T. Newman, for app’lt; Raymond L. Smith, for resp’t.
   Hardin, P. J.

At the commencement of the trial the defendant’s counsel asked the direction of the court to the plaintiff’s counsel “to elect whether he will prosecute this action for deceit in tort, or whether for breach of warranty on contractfolio 3. Thereupon the court observed “ As I Understand it it is announced to be an action for breach of warranty. * * You do not claim now that there is anything but a breach of warranty ?” To which question the plaintiff’s counsel replied “That is all.” When the defendant was giving evidence the question arose as to whether it was admissible to prove the rental value of the organ in the fall of 1887. In connection with the objection the court ■observed “ If there was no warranty then there is no liability folio 112. Thereupon the counsel for the defendant observed “ Do I understand the court takes the position that if they can recover damages at all it must be for a beach of warranty?” To which the court replied, viz.: “It must be fora breach of warranty and nothing else. * * You must defend this action upon the ground that you made no such representation and that there was no warranty, or you fail to defend it in my judgment; and they must maintaindtheir action upon their complaint upon the ground that there was a warranty and there was a breach of 'it. I think you are entitled to offset anything in this action that would offset the purchase price ;’’ folio 114. At the commencement of the charge the trial judge said “ This is an action brought by Minnie English against Joel Hanford to recover for a breach of warranty in the sale of an organ;” folio 154; and further on he said “ The first question for you to proceed with, gentlemen, is, was there a of this kind ? Did he warrant it to be a new organ unusedfolio 162 ; and in referring to the question of damages the court used the following language : “ If she has suffered any damages, gentlemen, I shall charge you that the rule of law in this case is, that she is entitled to recover the difference between the value of a new organ as represented, unused, and this organ in the condition in which it was at the time it was delivered to herfolio 170. From the foregoing events and incidents occurring upon' the trial, we think the action was treated as one upon a warranty, and damages were sought .to be recovered for a breach of warranty; and that, unless the verdict can be maintained upon the theory that the plaintiff was entitled to recover for a warranty, it ought not to be sustained. At the close of the negotiations between the parties in respect to the organ the plaintiff executed an instrument containing the following language:

“$65.00. Ithaca, Aug. 2d, 1887. •
“ One year after date I promise to pay Joel Hanford sixty-five dollars, value received as follows: Five dollars the first of every month until paid.
“ When $65.00 with annual interest is paid, Ithaca organ No. 9,058 is my property; until paid, the title remains in said Joel Hanford or holder of this, with the right to retake it out of my possession on default of payment as above specified.
(Signed) Mbs. Wakeman English.”

Possession of the organ was given to and taken by her and she remained in possession until after she had made default in complying with the terms of her contract with the defendant. She testifies the organ was taken from her possession July(23d, 1892; folio 21. She was in default in making her payments before the property was removed from her possession. The evidence clearly shows that she never completed her contract for the purchase and that she never had a clear, full, absolute, unconditional title to the property prior to the commencement of this action.

In Benjamin on Sales, under the head of Remedies of the Buyer, at page 865, are found the following words: “But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due in installments, and the last installment had not been paid, it was held in Fyre v. Milligan, 10 Ont. R. 509 (1885) that no remedy yet existed on the warranty.” Benjamin on Sales, Bennett’s edition of 1885.

In Osborn v. Gantz, 60 N. Y., 540, it was held, viz.: “ A warranty is an incident only of a completed sale ; it has no present vitality and force in an executory'contract of sale.”

(2.) It is now sought to maintain the verdict on the ground that the evidence would have justified a finding of fraud on the part of the defendant. The case was not submitted to the jury in that aspect and before the verdict shall be upheld that establishes the defendant’s liability for fraudulent representations he is entitled to a clear and intelligent presentment of the questions relating thereto to the jury. Mayo v. Knowlton, 134 N. Y., 251; 47 St. Rep. 748. We think there should be a new trial ordered.

Judgment and order reversed and a new trial ordered with costs to abide the event

Martin and Merwin, JJ., concur.  