Bucknam v. Goddard

38 Mass. 70

• Court: Massachusetts Supreme Judicial Court
• Decided: April 15, 1839
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. The witness stood in such a relation that he would be bound to the amount of the actual value of the goods, which are the subject of this suit, to one party or the other, in any event, and so his interest was precisely balanced. If the defendants fail, upon the question of title, the witness, as his vendor, will be bound on his implied warranty of title, to malte good the loss to the defendants. If the plaintiffs fail to hold the goods, they will have their remedy against the witness, on the contract of sale.

Whether the liability for costs would make the witness interested and incompetent or not, is a question which does not arise, because it does not appear that the witness would be liable to the defendant for costs. In general a vendor, on such implied warranty, would not be liable to the vendee on failure of title, for costs of a previous defence, unless the defence was made for his benefit and at his expense ; there is no evidence that it is so in this case. Eldridge v. Wadleigh, 3 Fairfield, 371 ; Nix v. Cutting, 4 Taunt. 17 ; Ridley v. Taylor, 13 East, 175.

Judgment on the verdict.