Thornton v. Wynn.

stated, the judgment of the court below must be reversed, and the cause remanded for a new trial.

But since the second question before mentioned has been distinctly brought to the notice of this court, has been fully argued, and must again be decided by the court below, it becomes necessary that this court should pass an opinion upon it. That question is, whether the alleged breach of the warranty of the horse, the price of which formed part of the consideration of the note, if proved to the satisfaction of the jury, was a sufficient defence in this action, to prevent the plaintiff from recovering, unless the facts stated in the bill of exceptions were known to the plaintiff below, at the time of the sale. The question is not, whether the purchaser of a horse which is warranted sound, has a remedy over against the vendor, upon the warranty, in case it be broken, but whether, in an action against him for the purchase-money, he can be permitted to defend himself, by proving a breach of the warranty.

The cases upon this subject are principally those where the vendee, having executed the contract on his part, by paying the purchase-money, brought an action of indebitatus assumpsit against the vendor, as for money had and received to his use. But it is perfectly clear, that the reasoning of the court in those cases applies with equal force to *a case where the *190] breach of the warranty is set up by the vendee, as a defence against an action against him to recover the purchase-money.

The first case we meet with on this subject, is that of Power v. Wells, of which a very imperfect report is to be seen in a short note in 1 Doug. 24, and in Cowp. 818. There, the plaintiff gave a horse and 20 guineas to the defendant, for another horse, which he warranted to be sound, but which proved otherwise. The plaintiff offered to return the horse, which was refused, and the plaintiff brought two actions, one for money had and received, to recover back the 20 guineas which he had paid, and an action of trover for the horse, possession of which the plaintiff had delivered to the defendant. The court decided, that neither action could be maintained; not the second, because the property had been changed. This case was referred to by the judge who had decided it at nisi prius, in the case of Weston v. Downes, 1 Doug. 23, which soon after came before the court of king's bench. That was an action for money had and received, and the case was, that the plaintiff had paid a certain sum to the defendant for a pair of horses, which the defendant agreed, at the time, to take back, if they were disapproved of, and returned within a month. They were returned accordingly, within the stipulated period, and another pair was sent in their stead, without any new agreement. These were likewise returned, and accepted by the vendor, and a third pair were sent, which being likewise offered to be returned, the vendor refused to take them back. Lord MANSFIELD was against the action, because the contract, being a special one, the defendant ought to have notice by the declaration that he was sued upon it. ASHHURST, J., was of the same opinion; but added, that if the plaintiff had demanded his money, on the return of the first pair of horses, this action would have lain, but that the contract was continued; from which expression, nothing more is understood to have been meant, than that the contract remained open. The ground upon which BULLER, J., thought that the action could not be maintained was, that, by refusing to take back the horses, the defen

Thornton v. Wynn.

dant had not precluded himself from entering into *the nature of the contract, and that, whenever that is open, it must be stated specially.

The meaning of these latter expressions is distinctly stated by the court, and particularly by this judge, in the case of Towers v. Barrett, 1 T. R. 133, which followed next in order of time; that was also an action for money had and received. The money was paid for a horse and chaise, to be returned, in case the plaintiff's wife should not approve of them. They were accordingly sent back to the defendant, in three days after the sale, and left on his premises, against his consent to receive them. Lord MANSFIELD, Ch. J., and WILLES, J., distinguish this case from that of Weston v. Downes, upon the ground, that that was an absolute, and this a conditional agreement, which was at an end, by the return of the horse and chaise, and was no longer open. Both the judges treat the case as if the vendor had taken back the property, although, in fact, he had not consented to do so. ASHHURST, J., was of opinion, that this case would have resembled that of Weston v. Downes, if, in that, the plaintiff had returned the horses. It is very clear, from what was said by the same judge in that case, that his meaning in this was, if the plaintiff had returned the first pair of horses, and then demanded his money; for, he adds, that in that case, there was an end of the first contract, by the plaintiff's taking other pairs, and this constituted a new contract, not made on the terms of the first. But in this case, the contract was conditional, and when the horse and chaise were returned, the contract was at an end, and the defendant heid the money against conscience. BULLER, J., is still more explicit: he says, that the defendant, by the contract, had put it in the power of the plaintiff to terminate it, by returning the horse and chaise, and that the plaintiff had no option to refuse to take them back; and that, being bound to receive them, the case was the same as if he had actually accepted them. He adds, that the distinction between those cases where the contract is open, and where it is not, is, that if it be rescinded, either by the original terms of the contract, as in this case, where no act remains to be done by the defendant, or by a subsequent assent by

him, the plaintiff may recover back his whole *money, and then this [*192 action will lie. But if it be open, the plaintiff's demand is only for damages arising out of the contract.

The court proceeded upon this distinction, in deciding the case of Payne v. Whale, 7 East 274, which followed the one just noticed. The action was to recover back money paid to the defendant for a horse, sold by him to the plaintiff, which he warranted sound. The plaintiff offered to return the horse, upon an allegation of his unsoundness, which the defendant denied, and refused to take him back, but agreed that, if he was in fact unsound, he would take him back, and return the purchase-money. The unsoundness was proved at the trial; but the court was of opinion, that the action could not be supported, and distinguished this case from the preceding one, by observing, that in that, the plaintiff had an option, by the original contract, to rescind it, on a certain event; but here, it was no part of the original con tract that the horse was to be taken back; and that the subsequent promise amounted to no more than that he would take him back, if the warranty were shown to be broken, which still left the question of warranty open for discussion, and then the form of the action ought to give the defendant notice of it, by being brought upon the warranty.

Thornton v. Wynn.

The case of Lewis v. Cosgrave, 2 Taunt. 2, was precisely like the present, in which the same distinction, and the same principles, were recognised by the judge who tried the cause at nisi prius. It was an action on a bill drawn for the price of a horse, which, on the sale of him, was warranted sound, but turned out not to be so. The defendant offered to return the horse, which was refused, and the defendant left him in the plaintiff's stable, without his knowledge. The judge decided, that as the plaintiff had refused to take back the horse, the contract of sale was not rescinded, and, consequently, that the defendant must pay the bill, and take his remedy by action for the deceit. But upon a rule to show cause why a new trial should not be granted, the court said, that it was clear, the plaintiff knew of the unsoundness of the horse, which was clearly a fraud, and that no man can recover the price of an article sold under a *fraud. See also the cases of Fortune v. Lingham, 2 Camp. 416, and Solomon v. Turner, 1 Stark. 51.

*193]

The result of the above cases is this: if, upon a sale with a warranty, or if, by the special terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent to an offer accepted by the vendor, and in that case, the contract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchasemoney, or to enable the vendee to maintain an action for money had and received, in case the purchase-money has been paid. The consequences are the same, where the sale is absolute, and the vendor afterwards consents, unconditionally, to take back the property; because, in both, the contract is rescinded by the agreement of the parties, and the vendee is well entitled to retain the purchase-money, in the one case, or to recover it back, in the other. But if the sale be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action upon the warranty, unless it be proved, that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it, within a reasonable time. the direction of the court in this case, entirely correct. The judgment is to be to the court below for a new trial.

We are, therefore, of opinion, that upon the second exception, was reversed, and the cause remanded

Judgment reversed.

122

MALLOW and others v. HINDE.

Equity-Parties.

Where an equity cause inay be finally decided as between the parties litigant, without bringing others before the court, who would, generally speaking, be necessary parties, such parties may be dispensed with in the circuit court, if its process cannot reach them, or if they are citizens of another state.

*But if the rights of those not before the court are inseparably connected with the claim [*194 of the parties litigant, so that a final decision cannot be made between them, without affecting the rights of the absent parties, the peculiar constitution of the circuit court forms no ground for dispensing with such parties.'

But the court may, in its discretion, where the purposes of justice require it, retain jurisdiction of the cause, on an injunction bill, as between the parties regularly before it, until the plaintiffs have had an opportunity of litigating their controversy with the other parties, in a competent tribunal, and if it finally appear by the judgment of such tribunal, that the plaintiffs are equitably entitled to the interest claimed by the other parties, may proceed to a final decree upon the merits.

APPEAL from the Circuit Court of Ohio.

February 12th, 1827. This cause was argued by Bond and Brush, for the appellants; and by Doddridge and Scott, for the respondents.

February 20th. TRIMBLE, Justice, delivered the opinion of the court.This is an appeal from the decree of the circuit court for the district of Ohio, dismissing, generally, with costs, the bill of the appellants, who were plaintiffs in that court.

The suit was a contest for land in the district set apart on the northwest side of the Ohio, for the satisfaction of the bounty lands due to the officers and soldiers of the Virginia line, or continental establishment, in the revolutionary war. The plaintiffs set up claim to the land by virtue and under a survey, No. 537, in the name of John Campbell. It appears, that John Campbell, before his death, made his last will and testament, whereby he devised his land-warrants, entries and surveys in the military district, to Col. Richard Taylor and others, his executors, in trust for the children of the testator's sister, Sarah Beard; and that Taylor alone qualified as executor, and took upon himself the trust. Taylor never conveyed or assigned the warrants, entries or surveys, to Mrs. Beard's children, but permitted them, as the bill charges, to take the management of them, into their own hands. Elias Langham made sundry executory contracts with Mrs. Beard's children, after they arrived at full age, which contracts are set out in the bill, whereby, as the complainants *allege, Langham became equitably entitled to survey No. 537; and afterwards sold, and made deeds [*195 of conveyance for the land to the complainants; who, in consequence of their purchases from Langham, took possession of, and improved the land.

Thomas S. Hinde, having purchased and produced an assignment of a military warrant from Col. Richard Taylor, and belonging to him in his own right, made an entry thereof in Hinde's own name, in the principal surveyor's office; and having caused a survey to be made thereupon, covering survey No. 537, in the name of Campbell, Hinde obtained a patent for the

1 Ripon v. Railroad Companies, 16 Wall. 446; Society v. Hartland, 2 Paine 536; Joy v. Wirtz, 1 W. C. C. 517; Young v. Cushing, 4 Biss. 456.

Mallow v. Hinde.

land from the government. Being thus clothed with the legal title, Hinde instituted actions of ejectment in the circuit court, against the appellants, and obtained judgments of eviction against them. They filed their bill, praying for an injunction against the judgments at law; and also praying that Hinde should be decreed to release and convey to them his legal title, and for general relief.

The bill charges, that Col. Richard Taylor, with full notice that the appellants were, in virtue of Langham's contract with the cestuis que trust, and Langham's sale to them, equitably entitled to, and in possession of, survey No. 537, fraudulently combined with Hinde and others, and improperly and without authority, withdrew the entry on which survey No. 537 had been made, and re-entered and caused it to be surveyed elsewhere; and that Hinde, availing himself of such improper and unauthorized withdrawal, had entered, surveyed and patented the land in his own name, he also having notice of all the circumstances attending the claim of the appellants; and that Taylor and the Beards refuse to perfect the survey, by obtaining a patent, and refuse to convey or transfer it to the appellants. The bill also alleges, that Langham had become equitably and legally entitled to the survey No. 537, as a purchaser thereof for taxes due thereon to the state of Ohio.

Hinde filed his answer, in which he denies the charges of fraud and collusion; insists the land had become vacant by the withdrawing of the entry in the name of Campbell, and by surveying it elsewhere; and that he had *196] legally appropriated it by his entry, survey and grant; he neither admits nor denies the execution of the contracts alleged between Langham and the Beards, and puts the complainants upon proof; and he further insists, that such contracts, if made, conferred upon Langham no equitable title: first, because the Beards had no power to sell, without the concurrence of Taylor, the trustee; and, secondly, because Langham had obtained the contracts by fraud, and had not paid the consideration stipulated. Neither Taylor, the trustee, nor the cestuis que trust, with whom the complaints allege Langham contracted for the land, are made defendants, they being out of the limits of the jurisdiction of the court. No attempt has been made in the argument, to support the validity of the tax sale, and it may be laid out of the case.

For the appellees, it is insisted, that the proper parties are not before the court, so as to enable the court to decree upon the merits of the conflicting claims. And we are all of that opinion. It is plain, that the appellants cannot set up the survey No. 537, against the appellees' title, without first showing themselves entitled to that survey. They claim that survey, not by any assignment, or other instrument, investing them with a legal right to it, but by executory agreements, the validity and obligation of which the parties to them have a right to contest. We cannot try their validity, and decide upon their efficacy, by affirming they confer upon the appellants an equitable right, without manifest prejudice to the rights of those not before the court. The complainants can derive no claim in equity to the survey, under or through Langham's executory contracts with the Beards, unless these contracts be such as ought to be decree against them specifically by a court of equity. How can a court of equity decide that these contracts ought to be specifically decreed, without hearing the parties to them? Such