Chase v. Willard

Supreme Court of New Hampshire

Chase v. Willard

39 A. 901, 67 N.H. 369

CourtSupreme Court of New Hampshire

DecidedDecember 5, 1892

StatusPublished

Cited by2 cases

This text of 39 A. 901 (Chase v. Willard) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chase v. Willard, 39 A. 901, 67 N.H. 369 (N.H. 1892).

Pincite

Opinion

Per Curiam*

The plaintiff has suffered no practical damage by the alleged breach of the warranty of title. It was his intention to receive, and the defendant’s intention to convey to him, an *370 absolute title to the chattels. The written warranty that they were “ free from any incumbrance ” means that the title conveyed should be absolute in the vendee. Whether the vendor had in fact the entire right of disposing of the chattels is immaterial, for by the sale that right passed to the plaintiff. The statute (G. L., c. 137, s. 13) prohibiting the mortgagor from selling the mortgaged property without the consent of the mortgagee in writing upon the mortgage did not prevent the title from passing. Gage v. Whittier, 17 N. H. 312; Patrick v. Meserve, 18 N. H. 300; Roberts v. Crawford, 54 N. H. 532; Bank v. Raymond, 57 N. H. 144. If the defendant had not the right of selling the property to every one, he had the right of selling it to the plaintiff free from any incumbrance; and the plaintiff having received the title he contracted for, cannot now rescind the contract on the ground that the defendant had not the right to sell the property generally, or to dispose of it in all ways as the absolute owner of it. It is not understood that a technical breach of a contract of warranty in an immaterial respect, resulting in no appreciable damage to the vendee, authorizes him to repudiate the contract and exercise the remedial power of rescission. 2 Kent Com. 475, 476; 2 Sch. Per. Prop., s. 597; Stoddart v. Smith, 5 Binn. 355, 363; Case v. Hall, 24 Wend. 102; Flight v. Booth, 1 Bing. N. C. 370, 377. Whether assumpsit for nominal damages or an action for a breach of the warranty could be maintained we need not inquire. It would be inequitable to allow an amendment to be made for the purpose of raising either of those questions.

Judgment for the defendant.

Carpenter, J., did not sit: the others concurred.

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Per Curiam*

The plaintiff has suffered no practical damage by the alleged breach of the warranty of title. It was his intention to receive, and the defendant’s intention to convey to him, an *370 absolute title to the chattels. The written warranty that they were “ free from any incumbrance ” means that the title conveyed should be absolute in the vendee. Whether the vendor had in fact the entire right of disposing of the chattels is immaterial, for by the sale that right passed to the plaintiff. The statute (G. L., c. 137, s. 13) prohibiting the mortgagor from selling the mortgaged property without the consent of the mortgagee in writing upon the mortgage did not prevent the title from passing. Gage v. Whittier, 17 N. H. 312; Patrick v. Meserve, 18 N. H. 300; Roberts v. Crawford, 54 N. H. 532; Bank v. Raymond, 57 N. H. 144. If the defendant had not the right of selling the property to every one, he had the right of selling it to the plaintiff free from any incumbrance; and the plaintiff having received the title he contracted for, cannot now rescind the contract on the ground that the defendant had not the right to sell the property generally, or to dispose of it in all ways as the absolute owner of it. It is not understood that a technical breach of a contract of warranty in an immaterial respect, resulting in no appreciable damage to the vendee, authorizes him to repudiate the contract and exercise the remedial power of rescission. 2 Kent Com. 475, 476; 2 Sch. Per. Prop., s. 597; Stoddart v. Smith, 5 Binn. 355, 363; Case v. Hall, 24 Wend. 102; Flight v. Booth, 1 Bing. N. C. 370, 377. Whether assumpsit for nominal damages or an action for a breach of the warranty could be maintained we need not inquire. It would be inequitable to allow an amendment to be made for the purpose of raising either of those questions.

Judgment for the defendant.

Carpenter, J., did not sit: the others concurred.

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Bluebook (online)

39 A. 901, 67 N.H. 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chase-v-willard-nh-1892.

Opinion

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