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Furniss against Ferguson.

kin of the person killed, to the exclusion of his creditors, and that intention is conveniently expressed in the language used. Distributive shares in the estates of intestates like other choses in action, go to the personal representatives of the person entitled in case of his death, and I see no reason why such would not be the case in respect to a claim like the one under consideration.

The judgment should be affirmed.

All the judges concurring in this opinion,

Judgment affirmed.

FURNISS against FERGUSON and others.

Upon the assignment of a judgment, in the absence of any statement by the
assignor that payments have been made thereon, the law implies a warranty
that the whole nominal amount remains due and unpaid.
Where, in a written assignment of a judgment, the assignor declares that he
warrants his title and power to convey the same only to the extent of the
consideration paid, this is to be taken as a limitation, not upon the extent
of the title impliedly warranted, but of the liability of the assignor in case
of its failure.

The defendants were the owners of a judgment recovered by other parties and
assigned to them, one G., an attorney, having had charge of its collection for
the original owners, and continuing to have such charge. The defendants
assigned to the plaintiff the said judgment, "and all sums collected thereon
and all securities for the same, held as collateral by us or said G. (the
attorney), or any one else for our benefit; and in case said judgment be now
paid, or in any manner discharged, or transferred to any one else, we assign
the proceeds or price of such settlement or sale." About $1000 had been
paid on the judgment, to the original owner, previous to its assignment to
the defendants. Held, That the defendants were liable, therefor, either
upon an implied warranty that they could transfer all sums paid on the
judgment, whether before or after the assignment to them, or upon a similar
warranty that the whole amount of the judgment was due, except such suma
as had been paid thereon to them, or for their benefit.

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Furniss against Ferguson.

seems that the measure of damages in a case of this kind, is such proportion of the whole amount which the plaintiff would be entitled to recover upon the failure of title to the entire property, as the value of that portion of the title which has failed bears to the value of the whole. Per SELDEN, J.

THE plaintiff brought his action in the Superior Court of New-York city; stating, by his complaint, that the defendants, in August, 1852, in consideration of $2586, assigned to him a judgment recovered by one Archibald Brown against Justus Wyman, at the Circuit Court in Montgomery county, Alabama, on the 5th March, 1838, for $6574.70, and which had before then been assigned and transferred to the defen dants. The terms of the assignment to the plaintiff were set forth in the complaint; and it was stated that, prior to the transfer of the judgment by Brown to the defendants, sums amounting to about $1000 had been paid thereon to Brown, which sums, with interest thereon from the time of payment, the plaintiff claimed to recover. At the trial, the plaintiff produced and proved a written instrument signed by the defendants, in which, after reciting the recovery and assignment to them of the judgment above described, and that the same was in the hands of George Goldthwaite, attorney, for collection, the defendants did thereby "assign and transfer unto T. A. F. (the plaintiff), the said judgment and all sums collected thereon, and all securities for the same held as collateral by us, or said Goldthwaite, or any one else, for our benefit, and in case said judgment be now or in any manner discharged or transferred to any one else, we assign the proceeds or price of such settlement or sale." The instrument further stated, that it was "the intention of the assignors herein to substitute in their place the assignee herein mentioned, and to transfer to him all their rights to and growing out of said judgment, as fully as they are now held and enjoyed by them; and the assignors warrant their title and power to convey the same only to the extent of the consideration paid by the said T. A. F., assignee herein named." The plaintiff then proved that

Furniss against Ferguson.

prior to April 9, 1839, payments to the amount of $988.85 had been made by Wyman and received by Brown, the original parties to the judgment. This sum, with interest from April 9, 1839, he claimed to recover, and rested. The defendants' counsel moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute cause, being the same facts as proved; and also that it was incumbent on the plaintiff to prove that the amounts sough to be recovered in this action would have been collectable of Wyman after the assignment to the plaintiff, if they had then remained due on the judgment, on which subject no proof had been offered. He also claimed that the plaintiff was entitled to recover, if at all, only such a proportion of the sums paid on the judgment as the price paid for the assignment bore to the amount of the judgment, which would make about $362.14, with interest thereon. The jury, by consent of parties, found a verdict for the plaintiff for $2500, subject to the opinion of the court at general term, with liberty to the court to enter a nonsuit or judgment for defendants. Upon the hearing at general term, the court set aside the verdict, dismissed the complaint, and rendered judgment for the defendants, for costs. The plaintiff appealed to this court.

A. J. Parker, for appellant.

J. Larocque, for respondent.

SELDEN, J. The doctrine of implied warranty of title applies with no less force to the sale by one person of a judgment recovered in the name of another, than to the sale of a mere personal chattel. It is founded on the presumed superior knowledge of the vendor on the subject, and this presumption would certainly be as strong upon the sale of such a judgment, when the evidence of the vendor's title must rest in contract alone, as upon that of a chattel

Furniss against Ferguson.

which is susceptible of a more open and visible transfer. This warranty, in case of a sale of a judgment, where nothing is said on the subject, must embrace a warranty hat the judgment is due and unpaid. The vendor is presumed to have the means of knowing how this is; while the /endee is not supposed to have this knowledge. The vendor is held liable upon an implied warranty, in such a case, upon a principle precisely analogous to that upon which he is bound to respond, when upon the sale of a chattel he conceals some latent defect. The only difference is, that in one case the scienter must be proved; in the other it is presumed. There is an implied warranty as to quality as well as title, upon every sale of a chattel, when the circumstances are such as to imply a knowledge by the vendor of the defects in quality; as where a manufacturer selis articles having defects growing out of the process of manufacture. The warranty in such a case rests upon precisely the same principle as the implied warranty of title. Wheresoever the knowledge of a defect not disclosed, whether it be of title or of quality, is presumed, the vendor is liable upon a warranty; and whenever the knowledge is proved, he is liable for a fraud. It is a warranty in the one case and not a fraud, simply because fraud cannot be predicated upon a mere legal presumption.

It follows that, when a judgment for a specific amount is assigned, nothing being said about any payment, and it turns out that payments have been made, whether this be regarded as a defect of title or quality, it is a violation of the implied warranty, because the assignee must of course in ordinary cases be presumed to have better means for knowing the facts than the purchaser.

There may, undoubtedly, be cases to which this presumption would not apply; as when a judgment is transferred to one who has had charge of its collection, under such circumstances as would raise a presumption that he was privy to the payments. But these are exceptions. As a

Furniss against Ferguson.

general rule, the superior knowledge of the assignor woud be presumed, and there is nothing in the present case to repel that presumption.

It is clear, therefore, that the law would raise au impied warranty, on the part of the defendants here, that he whole amount of the judgment remained due and unpai? except so far as such warranty may be either precluded or limited by the terms of the written assignment. The expression which that assignment contains, that "the assignors warrant their title and power to convey the same (i. e., the judgment) only to the extent of the consideration paid," is plainly a mere limitation of the amount for which they are to be held liable upon the warranty of title. I regard this not as a substitute for, but as a recognition of the implied warranty, and a limitation of the liability upon it. But it is immaterial whether it be so regarded, or as an express warranty superseding that which the law would imply. In either case the limitation is not upon the extent of the title warranted, but of the liability of the assignors in case of its failure.

It is impossible to consider this as a warranty mercly that the amount due upon the judgment was equal to the amount of the consideration paid. If, then, there is any limitation of the implied warranty, that the whole amount of the judgment was due, it must be found in that clause which assigns to the plaintiff "the said judgment, and all sums collected thereon, and all securities for the same, held as collateral by us, (i. e., the assignors), or said Goldthwaite, or any one else, for our benefit, and in case said judgment be now paid, or in any manner discharged or transferred to any one else, we assign the proceeds or price of such settlement or sale." This clause is susceptible of two constructions. The doubt is whether or not the words "for our benefit" were intended to apply to and to qualify the phrase "all sums collected thereon," or are limited in their application to what follows in regard to collateral securities. I do not SMITII.-VOL. I.


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