Mills v. Porter

5 Thomp. & Cook 63

Opinion

Gilbert, J.

The only grounds upon which a recovery, could be claimed in this case are that the defendant sold the note to Wood, and that on such sale there was an implied warranty of the title to the note. Neither of these propositions can be maintained. There was no sale of the note, but a mere assignment thereof for the purpose of having it, collected upon an agreed compensation to be paid to Wood, namely, the interest which had accrued and might thereafter accrue on the note. That assignment was, wholly ineffectual for the reason that the defendant was not the owner of the note. The note belonged to Jabez Porter, and was given to secure the payment of a loan made by him to the makers; was payable to his order, and had not been indorsed or transferred by him. The defendant held it merely as Jabez Porter’s custodian." The note on its face showed that' the defendant had no title to it, and that fact was equivalent to a declaration to that effect accompanying the assignment. The transaction was illegal on the part of both Wood and the defendant. The doctrine of implied warranty of title on the sale of a chattel cannot be applied to such a case, for in contemplation of law the note was not in the possession of the assignor. Scranton v. Clark, 39 Barb. 273; S. C., 39 N. Y. 220. The plaintiff merely stands in the shoes of Wood.

The judgment, therefore, must be affirmed.

Judgment affirmed.