« ForrigeFortsett »
used, because the purchaser has the same knowledge and means of knowledge of these subjects as has the dealer. The vendee knows that they both rely on the character and reputation of the manufacturer [citing authorities]."
This is a natural corollary to the majority rule, or that of nonliability on an implied warranty by a dealer. There is no escaping the conclusion that the appellant in this case sold to the respondent an article of known manufacture, of which the vendor or dealer was not the builder. The case comes squarely within this rule. The appellant relies upon the rule that, where goods of some specific kind are ordered of the manufacturer or dealer, which the buyer has neither inspected nor selected, there is an implied warranty that the article delivered shall be of fair average quality or goodness according to its kind, and free from remarkable defects. Mechem on Sales, § 130. But under this rule, as pointed out by the same author in section 1345, before a dealer can be held liable on an implied warranty, the conditions stated in the rule must be present
To review the many authorities cited in the respondent's brief and distinguish them seriatim would extend this opinion to an unreasonable length and serve no useful purpose. erally speaking, it may be said that the cases cited fall into one of the four following classes: First, they are cases that have adopted what is called the minority rule, and not the rule of the majority, as adopted in the Hurley-Mason Case. Such cases would not be persuasive in this jurisdiction, so long as the rule of the case referred to stands. Second, cases where there is an express warranty. Third, cases where the purchaser desires an article for a specific purpose, and communicates this purpose to the dealer, and the latter undertakes to furnish an article suitable for the purpose specified. The case of Hausken v. Hodson-Feenaughty Co., 187 Pac. 319, is within this class. Fourth, where goods of some specific kind are ordered of the manufacturer or dealer which the buyer has neither inspected nor selected. As already pointed out the present case does not fall within this rule.
The respondent's contention that an implied warranty is an inference of fact, and therefore
a question for the jury to determine, has not been overlooked. It may be admitted that as a general rule an implied warranty is a presumption of fact, and not of law, based upon the presumed intent of the parties. If the facts were such that more than one inference might reasonably be drawn therefrom, it will be assumed that it would be the province of the jury to determine the proper inference. Where, however, only one inference can be drawn from the undisputed facts, there is no function for the jury to perform, and the question becomes in effect one of law. The automobile in question being one of known manufacture, of which the appellant, as dealer, was not the builder, under the majority rule as adopted in the Hurley-Mason Case, and the corollary thereto as stated in the Reynolds Case, there can be no recovery in this case. This being decisive of the action, it is unnecessary to review the other questions presented and disclosed in the briefs. To hold otherwise than that indicated would be to apply a different rule in this state to the sale of automobiles by a dealer than is applied when other articles are so sold. We see no reason why the sale of an automobile by a dealer should not be controlled by the general rule. The purchaser can protect himself by exacting from the dealer an express warranty.
The judgment will be reversed, and the cause remanded, with directions to the superior court to dismiss the action.
HOLCOMB, C. J., and MITCHELL, PARKER. and TOLMAN, JJ., concur.
NOTE-Implied Warranty in Sale By a Dealer. -It is said in Hurley Mason Co. v. Stebbins, Walker & Spinning, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915B, 1131, Ann. Cas. 1916A, 948, that: "According to the great weight of authority, there is a distinction between executory sales by manufacturers and executory sales by dealers; the rule being that on a sale by a manufacturer, there is an implied warranty of fitness for the purpose intended and of freedom from defects not discoverable by ordinary inspection and tests, while, on a sale by a dealer, there is no such implication, in the absence of a specific warranty to that effect. All that is required of a dealer is an exercise of good faith and fair dealing." There are cited many cases to this proposition, and among others, Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537, 28 L. ed. 86. That case was where the manufacturer was held impliedly to have warranted the work. but Justice Harlan speaks of the different attitudes as to knowledge of defects, not discoverable by ordinary inspection of manufacturers and dealers. Where a dealer sells there is no presumption he had "special knowledge of the mode in which an article was made."
In Remy v. Healy, 161 Mich. 266, 126 N. W. 202, 29 L. R. A. (N. S.) 139, 21 Ann. Cas. 74, it was ruled that there was no warranty by jobbers
that garments they sell by sample to a retailer for resale are fit for the purpose for which they were made. The opinion says: "It is a settled rule, that one who buys an article which is present and subject to his inspection cannot afterwards assert an implied warranty of fitness, quality or condition, in the absence of fraud, except possibly where the seller is the manufacturer or grower or the vendor of articles intended for consumption as food." The sale in this case was by sample, and there was no question about the goods coming up to the sample.
The principle that the dealer does not warrant against latent defects is upheld in English decision as see Dickinson v. Lee, 2 East 314, which was a sale of hops by sample. They had been watered so as to cause them to heat and be of little value. The Judge said: "Here was a commodity offered for sale which might or might not have a latent defect. This was well known to the trade, and the plaintiff (purchaser) might, if he pleased, have provided against the risk by special warranty. * * * I know of no authority which makes the seller liable for a latent defect, where there is no fraud." etc. And so in early American decision, as see Dickinson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656. That case spoke of a defect in cloth not discoverable by ordinary care, and where the goods were sold by sample there was no implied warranty.
In Mayer v. Dean, 115 N. Y. 556, 22 N. E. 261, 5 L. R. A. 540, a purchaser was forbidden to show that mustard seed was not clean and free from impurity, where this could not be discovered by ordinary inspection, though the evidence that it was in this condition might be admissible to show fraud by the seller.
The Remy case is quite a full discussion of the cases on this question and there is an elaborate note in 29 L. R. A. at page 139, giving cases both of sales by manufacturers and those by other persons than manufacturers.
There is considerable decision on the question whether an implied warranty, where sale is by manufacturer, survives test, but these cases depend generally on a variety of facts and this subject is not attempted to be touched upon in this note. It may be said the principles set forth in Kellogg Bridge Co. v. Hamilton are generally recognized in the business world.
ITEMS OF PROFESSIONAL
RECENT DECISIONS BY THE NEW YORK COUNTY LAWYERS' ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS.
QUESTION No. 193.
Divorce; Relation to Client; Relation to Court-Execution of Power of Attorney by expectant defendant in divorce action in foreign court, prior to institution of action, to enable attorney to accept service and appear for dejendant-not necessarily improper. In the
opinion of the Committee is it professionally improper for an attorney to accept from an absent person, who expects to be made a defendant in a divorce action in a foreign jurisdiction, where the plaintiff has acquired a domicile, a power of attorney in advance of the institution of the action, to admit service upon the attorney within the jurisdiction of process in the action and to appear as attorney in behalf of the defendant and to file proper answer in his behalf?
Would the answer to the inquiry be different if the power of attorney were executed before the acquisition of the domicile, but in the expectation that in course of time it would be acquired and the action instituted? Would it be different if it were executed after both the acquisition of domicile and the institution of the action?
ANSWER No. 193.
The Committee sees in the question no intimation of unlawful collusion, though it is aware that what amounts to such collusion as a question of law, varies in different states.
Assuming, as it does, that the suggested course is for the protection of an absent person's rights (as indicated in the question), the Committee sees no impropriety in the acceptance by the attorney of the retainer and power to perform his duty under its terms. In its opinion, the time of such retainer and of the granting of such power, whether before or after acquisition of domicile or institution of the action, does not necessarily imply unlawful collusion; but it recognizes that it may be considered by the Court in determining whether the action is or is not collusive in fact.
QUESTION No. 194.
Title Company; Commissions; Fees; Relation to Client-Contribution by lawyer to client of Commissions received by him from Title Company-not improper; conditions indicated. -A Title Company is requested by an attorney, on behalf of a co-operative apartment corporation in which he is interested, to examine the title to real estate and to issue its policy. The bill of the Title Company is rendered to the corporation, and the latter, knowing that the attorney will be allowed a commission by the Title Company, requests that the attorney turn over to it any commission he may be entitled to from the Title Company. As the attorney is a stockholder in the co-operative apartment corporation, he makes no charge to it for his services.
Certain Title Companies in New York allow a commission of 25 per cent of their fees to attorneys, who in behalf of their clients place
business with the Title Companies in the examination and insurance of titles. The Title Company in question states that this commission is allowed to attorneys by the Title Companies owing to the fact that they would be able to make their own searches, but in no case is it ever allowed to a layman.
In the opinion of the Committee would it be proper for the attorney to comply with the request of the co-operative apartment corporation?
ANSWER NO. 194.
In answering previous questions the Committee has heretofore in substance expressed the opinion that in somewhat similar cases receipt by the lawyer from persons serving the legal profession, of any part of their compensation for work or services performed in litigation or in other matters in which the client is interested, the knowledge and consent of the client is requisite where such receipt is otherwise not improper; and that lawyers should not voluntarily put themselves into positions where the conditions of their compensation may interfere with the full discharge of their duty to their clients (Questions 111, 124, 166).
In the Committee's opinion the lawyer in this case may properly comply with his client's request.
In giving the foregoing response the Committee has not overlooked the possible implication that the allowance by the Title Company is conditioned upon its retention by the lawyer for his personal use. The Committee, however, is still of the opinion that the acceptance of such a condition is the client's and not the lawyer's privilege, and if the lawyer believes that the Title Company would not acquiesce in this disposition of the allowance, he should, to avoid deception, specifically inform the Title Company.
HUMOR OF THE LAW.
The curious effect sometimes produced in telegrams by want of punctuation or the omis sion of a single small word cannot fail to have struck everyone.
A London lawyer had a woman relative in Scotland from whom he had "expectations." She had been ailing for some weeks, when one morning came a telegram asking the lawyer's wife to go at once as she-his aunt-was much worse. His wife accordingly went.
During the evening of the following day the husband received this dubious announcement: "Aunt Matilda went to heaven at 3:20, returning by 11:50 tomorrow morning."-Houston Post.
A wife, according to Judge Fleming of Kansas City, is a liability, not an asset. The legal opinion came in the South Municipal Court here a few days ago when the judge undertook to take the assessment of the personal property of Ray Mason, a negro, who had refused to give a valuation to a deputy city as
"Judge," the negro began, "I'se got a $7 watch, a $100 Victrola and a wife-——”
"A wife, is not an asset," the court interrupted.
"Say, judge," countered the negro, "youall don't know mah wife."
Justice Hallam, of Minnesota, relates this story:
"I once had a friend who had a very disa greeable experience. It was during the time of the Farmers' Alliance movement. He came from Kansas to South Dakota, to make a Farmers' Alliance speech. The first man he met was the editor of the paper published at the place and who asked him for a copy of his speech for the next issue. My friend told him that he had no manuscript of his speech, but he said, 'If you will get a shorthand reporter I can give him an outline of it.' So the reporter was furnished, and a draft of the whole was given him. In one part of it he said, 'When you come to this point you put in, "At this point the Colonel by way of illustration brought in an anecdote." The speech was published and a marked copy was afterwards sent to the Colonel. Imagine his consternation when, in looking over the paper, he found that it read, 'At this point by way of illustration the Colonel, brought in a Nanny Goat.'"
1. Aliens-Ownership of Land.-Under Const. art. 2, § 33, prohibiting land ownership by aliens who have not in good faith declared their intention to become citizens, the declaration of intention must be in good faith toward the government with an intention to assume the obligations as well as the benefits of citizenship, so that a declaration of intention by an alien made on advice of his counsel after an action for escheat of his land had been instituted by the Attorney General and within a short time after he claimed military exemption because of his alienage is not in good faith and does not prevent the escheat of the lands.-State v. Staeheli, Wash., 192 Pac. 991.
2. Apprentices-Statutory between a machine company, a father, and his minor son for the apprenticeship of the son to the machine company was valid at common law, and an action could be maintained against the father for its breach, though it was not a statutory indenture of apprenticeship, and was not made in accordance with Rev. Laws, c. 155. -Putnam Mach. Co. v. Mustakangas, Mass., 128 N. E. 629.
3. Bankruptcy-Privilege of Bankrupt.-The voluntary filing of bankruptcy schedules, which standing alone, did not amount to an admission of guilt or furnish clear proof of crime, did not waive the bankrupt's privilege to refuse to answer questions concerning the schedules, when
he could fairly claim that such answers might tend to incriminate or disgrace him.-Arndstein v. McCarthy, U. S. Marshal, U. S. S. C., 41 Sup. Ct. 26.
4. Banks and Banking-Conversion.-A bank, which cashed a check on indorsement by its agent, with knowledge that the indorsement was unauthorized, and charged the check against the drawer's account, is liable to the payee of the check for conversion of his property, though it would not be liable to him in an action for breach of contract.-Fidelity & Deposit Co. of Maryland v. Bank of Charleston, Nat. Banking Assn., U. S. C. C. A., 267 Fed. 367.
5. Stockholders' Liability.-Under the language of Const. art. 12, § 2, bank stockholders do not relieve themselves from superadded liability on insolvency of the bank, as to existing obligations of the bank incurred while they owned their stock, by sale and transfer of their shares of stock.-Fremont State Bank v. Vincent, Wash., 192 Pac. 975.
6. Bills and Notes-Burden of Proof.-When there is evidence tending to show fraud in the execution of a note, the burden is on plaintiff to show that he was a bona fide purchaser of the note, and not on defendants to establish the negative of that proposition.-Dennison v. Spivey, N. C., 104 S. E. 370.
7. Boundaries-Monuments and Distances.The legal guides for determining a question of boundary or the location of a land line in their order and importance are natural monuments, artificial monuments, distances, courses, and quantity; the controlling consideration being the intention of the parties.-Meyer v. Comegys, La., 86 So. 307.
8. Brokers-Revocation of Agency.-In a real estate broker's action for commissions based on the production of a purchaser in answer to a written offer made by defendant to plaintiff, there could be no recovery where it appeared without contradiction that before defendant's proposal had been accepted defendant had revoked it.-Tillman v. Gibson, Cal., 192 Pac. 1033. 9. Carriers of Passengers Fine Print on Check.-Bailor of trunk with transfer company held not as a matter of law bound by the unknown terms in fine print on a small pasteboard check reasonably understood by her to be a mere voucher or token for identification of the trunk, and accepted as such by her without objection.-Hamilton V. Baggage & Omnibus Transfer Co., Ore., 192 Pac. 1058.
10. Commerce-Discrimination. ings of the Interstate Commerce Commission on questions of discrimination in service can be disturbed by judicial decree only where its action is arbitrary or transcends the legitimate bounds of its authority.-Seabord Air Line Ry. Co. v. United States, U. S. S. C., 41 Sup. Ct. 24.
11. Constitutional Law-Custody of Child.The right of a parent to the custody of a child is not a property right, but is a right based on the parent's obligations and is subject to the supreme power of the state to take the custody of the child away from the parent for its own good. Fischer v. Meader, N. J., 111 Atl. 503.
12. Contracts-Essence of.-Where time is of the essence of the contract, the parties to it are entitled to a strict compliance with its terms as to time of performance.-Penn Oil Co. v. Triangle Petroleum & Gasoline Co., Md., 111 Atl. 482.
13. Corporations-Trust Fund.-The property and assets of an insolvent corporation constitute a trust fund for the benefit of all its creditors.-P. B. Yates Mach. Co. v. Lakin, Wash., 192 Pac. 983.
14. Waiver.-The right given pledgee of stock to sell it at any time without notice to the pledgor is one which can be waived, and which is waived, by granting pledgor an indefinite extension of time within which to sell himself, so that after such extension a sale by pledgee without notice to pledgor is a conversion thereof.-Musser v. McCornick & Co., Utah, 192 Pac.
15. Courts-Extra Territorial Force.-Though other states may give effect to statutes outside the borders of the state enacting them, a state statute cannot have any effect as a law beyond the borders of the state which enacts it.-Quong Ham Wah Co. v. Industrial Acc. Commission, Cal., 192 Pac. 1021.
"Jurisdiction" is the power to hear and determine, not the power to hear and determine correctly or incorrectly. State v. Superior Court, Wash., 192 Pac. 937.
17. Criminal Law-Forfeiture.--That defendant had been convicted of illicit distilling does not deprive the court of authority to condemn or forfeit the property involved, under the rule against invoking a double penalty or punishing defendant twice for the same offense; the forfeiture proceeding being a proceeding in rem, and comprehended within the penalty fixed by statute.-United States v. One Machine for Corking Bottles, U. S. D. C., 267 Fed. 501.
18. Curtesy-Seisin. Actual seisin of the husband, or of some one to his use, is a requisite of dower; and actual seisin of the wife is a requisite of curtesy. Hence, where lands
are in the possession of a tenant for life, the wife or husband of a remainderman predeceasing the life tenant takes no dower or curtesy.Weaver v. Patterson, N J.., 111 Atl. 506.
19. Damages-Liquidated. -The purpose liquidated damages is to furnish compensation for an injury sustained, and if the amount provided does not bear a reasonable relation to the damage which might be contemplated by the parties, or if it was intended to more than cover that damage, and is not compensatory merely, it will be construed as a penalty.-Sunderland Bros. Co. v. Chicago, B. & Q. R. Co., Neb., 179 N. W. 546.
20. Death-Divorce.-A wife, who had separated from her husband soon after their marriage, and had thereafter received no support from him, but who was not divorced, can recover substantial damages for his death.Southern Ry. Co. v. Miller, U. S. C. C. A., 267 Fed. 376.
21. Intoxication.-If the deceased was intoxicated, that fact should be considered by the jury in connection with all the other facts and circumstances in determining whether he was guilty of contributory negligence, but did not in itself establish such negligence.-Guhl Warroad Stock, Grain & Produce Co., Minn., 179 N. W. 564.
22. Dedication-Plat.-A sale by the owner of a tract of land of lots within the tract by reference to a plat of the tract is a dedication to the public of the streets shown on the plat. -Town of Lumberton v. Branch, N. C., 104 S. E. 460.
23. Descent and Distribution. Good Will.Good will is an element of value proper to be taken into consideration in ascertaining the value of a going concern, as for purposes of estimating the value of stock inherited by a widow from her husband and purchased by her brother-in-law, the deceased husband's administrator.-Bettendorf v. Bettendorf, Iowa, 179 N.
father toward the mother while the children were visiting her should be condemned.-Delle v. Delle, Wash., 192 Pac. 966.
25. Dower-Marriage Relation. for dower, which is not the result of any contract between husband and wife, either express or implied, but an institution of the state, founded upon public policy, made by positive law an incident of the marriage relation, is not an action on contract, nor in personam against the heirs at law, but is in the nature of an action in rem against realty, to secure an assignment to the widow of the part thereof to which she is entitled.-Bonert v. Bonert, N. Y., 184 N. Y. S. 274.
26. Eminent Domain-Damages.-In proceedings to condemn a part of a lot for a sidewalk, it is not proper, in determining the measure of damages for the taker, to limit the inquiry as to the use to which the property may be put in the future, which opens too broad a field of conjecture.-City of San Antonio v. Fike, Tex.. 224 S. W. 911.
27. Equity-Clean Hands. A claim that a corporation complainant comes into court with unclean hands cannot be predicated on acts of a stockholder, unconnected with any action by the corporation.-Council of Defense of State of New Mexico v. International Magazine Co., U. S. C. C. A., 267 Fed. 390.
28. Concurrent Jurisdiction.-As the cause of action alleged by such a bill is one as to which courts of law and courts of equity have concurrent jurisdiction, adequacy of the remedy at law is no bar to relief in equity.-Sperry v. Premier Pocahontas Collieries Co., W. Va., 104 S. E. 486.
Estoppel-Repudiation.-If after a decree of partition is entered in a suit not brought for that purpose but by a creditor of one of the partitioners to subject his interest in the land partitioned to the payment of his debts, the several partitioners to whom allotments were so made take and hold in severalty the parts allotted to them respectively and thereafter sell convey, and lease the land with reference to such partition, equity will not suffer them or their successors in title, years afterward, to repudiate such partition.-Spriggs v. McCreery, W. Va., 104 S. E. 479.
Evidence Adverse Possession.-Declarations made by one in possession of land that he held it as his own are admissible to show adverse possession, as explanatory of the possession and part of the res gestae.-Richmond Cedar Works v. Foreman Blades Lumber Co., U. S. C. C. A., 267 Fed. 363.
31.- -Presumption.-The failure to produce evidence peculiarly within the knowledge of a party will raise a presumption against him, and every reasonable intendment will be in favor of his opponent on that issue.-Clover v. Clover, Tex., 224 S. W. 916.
Execution-Vendor's Lien.-A subsequent purchaser of land subject to a vendor's lien who assumed the payment of the note secured by the lien and whose interest was sold under execution is not liable to the purchaser at the execution sale on the assumption of the lien for the amount bid for the land, since the execution sale covered only the judgment debtor's interest in the land, which was his right thereto subject to the lien.-Bidwell v. Taylor, Tex., 224 S. W. 941.
33. Executors and Administrators-Attorney. -The attorney for an administrator acts in a fiduciary capacity toward the estate, and a sale by the administrator to him cannot be sustained any more than could a sale by the administrator to himself.-Shearman v. Cooper, Ill., 128 N. E. 559.
34. Equity.-That an administrator falsely represents to the court that he and his sister are the sole heirs of decedent, and thereby procures a decree of distribution to be made on that basis. does not entitle omitted heirs to relief in equity; the fraud being intrinsic merely. -Monk v. Morgan, Cal., 192 Pac. 1042.
Explosives-Negligence per se.-A person who uses kerosene in lighting a fire is not nec