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raise an implied warranty of reasona- for the deficiency in the equipment, ble fitness or capability in the case of for there was no warranty of any para bailment for hire of a specific dredge ticular length. Peterson v. Jahn Conwhich the bailee had the opportunity tracting Co. (1917) 96 Wash. 210, 164 to examine, and which he saw, where Pac. 937. the written agreement of the parties An agreement between a contractor contained no reference to the use to and his subcontractor for the rental which the dredge was to be put, and by the former to the latter of machinnotwithstanding that the defendant's ery and appliances already on the proof showed that at the time the ground at the date of the contract, dredge was taken over by him, it was which appears from the oral testinot in good working order, that fact mony to have been inspected by the is not a defense to an action for the subcontractor, for use in the execuagreed rent. The court said that tion of the work of the subcontract, where one hires a specific and ascer- does not raise an implied warranty of tained thing, with its own individual the fitness of the machinery for such identity, he should be compelled to work, or an implied undertaking on the take it as it is, if he foregoes protec- part of the principal contractor to retion obtainable by means of an express pair defects therein. E. L. Garrettson warranty, for a contrary doctrine v. Rinehart & D. Co. (W. Va.) supra, would put a premium on carelessness holding that there could be no recovand tend to promote fraud, and would ery for money expended in repairing permit a person to hire a particular
the rented machinery, upon the ground thing at a price so low as to invite sus- that the liability in that respect was picion, without either examining or in- precluded by the terms of the contract. quiring into its condition or capacity, A contract, for a lump sum, to take and yet be given by law, by the way of a specified steam tug towing barges an implied warranty, all the advantage to Brazil, the hirer to pay the crew that a careful and prudent man would and provide provisions for those on get from an alert protection of his in- board for the trip, does not imply an terests. Nor can the word “dredge," undertaking by the lessor that the used in the written contract in de- tug shall be reasonably efficient and scribing the machine leased, be given fit for the purposes of the voyage, and the effect of adding to the plaintiff's no damages can be recovered on the engagement
obligation which theory of the breach of warranty, for would not otherwise exist, for the losses due to the defective condition word is merely a general description of the engines of the tug, which were of the type of vessel that was bailed, in a damaged condition at the time of and cannot imply any warranty as to the hiring, unknown either to the dethe condition thereof.
fendant or to the plaintiff, it not apA contract leasing construction pearing that the engines were in a equipment "which is now let upon the worse state when the plaintiff took ground, as it is seen and inspected by possession and began the trip, than the parties hereto," which specifically they were in at the time of the conenumerates certain parts of the equip- tract. Robertson v. Amazon Tug & ment, and mentions “rails, joints, fish Lighterage Co. (1881) L. R. 7 Q. B. plates, and bolts for approximately 1 Div. (Eng.) 598, 51 L. J. Q. B. N. S. mile of 24-inch-gauge railroad," and 68, 46 L. T. N. S. 146, 30 Week. Rep. for “2 miles approximately of pipe,” 308, 4 Asp. Mar. L. Cas. 496,-C. A., cannot be properly construed as a con- Cotton, L. J., states that had the tract for any precise number of feet vessel not been ascertained and known of rails or pipe, and the fact that there to both parties at the time of the conare considerably less than 1 mile of tract, the contract would have probrails and 2 miles of pipe does not, ably implied such warranty as was rewhere it is shown that the lessee got lied upon by the plaintiff; but, being all the rails and pipes that were upon made in reference to a known vessel, the ground, give a claim for damages the contractor must, in the absence of
an actual stipulation, be considered as in good order and condition, and to having agreed to take the risk of the procure of the lessor or his agents all greater or less efficiency of the chattel parts for repairing same, and insert about which he contracted, for he was such parts at the lessee's own cost and to determine the price and might ex- charge,” it is no defense to an action amine it and satisfy himself of its con- for rent that the machine has worn dition and efficiency, and must be out and become antiquated, where taken to have fixed the price so as to such result is due to the failure of cover the risk arising from the condi- the lessee to keep it in repair, for, tion thereof, which he might have ex- while the bailor impliedly warrants amined if he had thought fit to do so. that the thing hired is of a character Bramwell, L. J., was of the opinion and condition to be used as contemthat the contract implied a warranty plated by the contract, if the parties that the tug was in a reasonable state have, by an expressed written agreeof repair, and in otherwise fit condi- ment, regulated the conditions under tion for the services contemplated by which the hiring takes place, the writthe contract, which was the holding ten agreement is the rule by which of the court below.
their rights are determined. Ibid. But the mere fact that the lessor is But in Kline Chair Co. v. Guagliasked for an article of a certain kind, anome (1916) 65 Pa. Super. Ct. 319, in capable of doing a certain class of an action to recover rent under a lease work or accomplishing a given result, of personal property, it was held that does not bring the case within this the averment in the affidavit of derule, for it is the use rather than the fense "that the goods leased were particular article that is being con- never satisfactory” was insufficient, tracted for, and the selection by the because it did not aver that the conhirer of one of the several articles dis- tract provided that the goods should tributed by the lessor would not be satisfactory, or in what particular ordinarily turn the nature of the hir- the goods were unsatisfactory, or what ing from one of use into one of the the plaintiff promised to do in conthing, for the hirer would still be rely- nection therewith. ing upon the lessor's judgment, in Where the lessee hired a barge with which case the agreement, in its es- the understanding that it "was all sence, would disregard the identity of right,” he is not, after knowledge that the thing hired, and look chiefly to the the barge has sprung a dangerous leak, results to be obtained from the use
entitled to rely upon such statement, thereof. Builders' Brick & Supply Co.
or indulge a presumption, against such v. Walsh Transp. Co. (1919) 106 Misc.
supervening fact, that the barge was 460, 174 N. Y. Supp. 690, affirmed in
in fact all right, and in an action to (1919) 189 App. Div. 898, 178 N. Y.
recover for the loss of the barge, Supp. 881, supra. And to the same
which sank while being used by the effect see Chew v. Jones (Eng.) supra.
lessee after knowledge that it had II.
sprung a dangerous leak, an instrucIV. Miscellaneous.
tion to the jury, “if the jury finds The provision in a contract for the from the evidence that Higman (leslease of a weighing machine that the sor), before Carmody (lessee) got the machine shall be accepted upon the barge, told him that the barge was all terms and conditions set forth in the right, then he had a right to rely upon contract, upon its meeting a certain it, and presume that the barge was in test, does not create an implied war- fact all right," is erroneous. Higman ranty that the machine should con- v. Carmody (1895) 112 Ala. 267, 57 tinue as when tested throughout the Am. St. Rep. 33, 20 So. 480. life of the bailment. Pneumatic Scale In an action for damages for failure Corp. v. Ideal Cocoa & Chocolate Co. safely to transport plate glass in(1915) 62 Pa. Super. Ct. 30.
trusted to the defendant for that purAnd under such contract, which re- pose, brought on the theory that the quires the lessee "to keep the machine defendant was a common carrier, the
defendant alleged as a defense that on the occasion in question he rented a truck, driver, and team to the plaintiff for the purpose of transporting glass, with the understanding that the plaintiff should assume responsibility for its transportation, and the court stated that in such case the defendant would owe no other duty to the plaintiff than to furnish him a team, truck, and driver reasonably suited for the transportation. The case was, however, disposed of on the ground that the defendant transported the glass as a carrier. Gurfein v. Rickard (1918) 92 Conn. 604, 103 Atl. 1002.
The hiring of a slave implies the warranty of title thereto, and, by reason of the title of the owner of the slave failing upon the passage of the 13th Amendment, the bailee is entitled to a pro tanto abatement of the price promised for the hiring. Mundy v. Robinson (1868) 4 Bush (Ky.) 342. And the bailee would be entitled to his pro tanto abatement should the title fail by reason of an eviction by a superior title. And to the same effect, see Hughes v. Todd (1865) 2 Duv. Ky.) 189, where it is said that the mere hiring implies a contract for indemnity if the hirer shall be evicted or disturbed by any lawful intrusion or eviction under a title paramount, or by lawful authority of the other contracting party.
But the enlistment of the slave in the Federal Army is not the kind of eviction under a paramount title for which the owner impliedly contracted to be responsible to the hirer, and the loss of his services due to such act does not entitle the hirer to any abatement of the price agreed to be paid for, while the contract implies that the hirer gives a stipulated price for the guaranteed title of the owner during the term, there is no implied guaranty of full or useful service for the
entire term, or any portion thereof, and, consequently, the sickness, death, or escape of the slave will be no legal failure of the consideration, and the resulting loss must be born by the hirer, who, by failing to provide for such contingencies, must be presumed to have undertaken the risk, without any abatement of the price which he unconditionally promised to pay the owner. Hughes v. Todd (Ky.) supra,
In Harron, Rickard, & McCone v. Wilson, L. & Co. (1906) 4 Cal. App. 488, 88 Pac. 512, the plaintiffs executed a lease of hoisting machinery to the defendants, under which the defendants took possession of the property, and in an action to recover the rental reserved, none of which the defendants had paid, the defendants, admitting the execution of the instrument and the possession of the property described therein, interposed as a defense that they took possession of the property under a warranty by the plaintiff that the machinery had a certain capacity, which it in fact did not have, and that their agreement to pay was in consideration of the said warranty, and not otherwise, and that, upon ascertaining these facts, they immediately offered to return the machinery to the plaintiff; and it was held that the averment that, "upon ascertaining these facts,” the defendants offered to return the machinery, with no statement as to when such facts were ascertained or the offer was made, made the answer uncertain, and a demurrer for uncertainty in that respect should be sustained, and that a second defense setting up a breach of the warranty did not constitute a defense to the action, since, on the face of the pleading, it did not appear that the two transactions were connected with each other, notwithstanding that the property specified in the defense answered the same description as that specified in the complaint. G. S. G.
ROBERT NICHOLSON, Respt.,
Montana Supreme Court - June 15, 1923.
(67 Mont. 517, 216 Pac. 328.) Pleading - petition to establish lost deed - sufficiency.
1. A petition to establish a deed lost before recorded must show that the title of the grantee is injured by its absence and therefore is insufficient if it fails to allege that the grantors had title to the property, or that the petitioner has any title or interest in or through it.
[See note on this question beginning on page 552.] Lost instrument action to restore ments to make a complaint correspond nature.
with the proof cannot obtain if the 2. An action to restore a lost in- proof does not establish a cause of strument is in its nature analogous action. to an action to quiet title, and under a prayer for general relief a court Appeal
Appeal - conclusiveness of finding. of equity may enter a decree quieting 5. Findings on conflicting evidence title if the pleading and proof are are binding on appeal. sufficient.
[See 2 R. C. L. 204; 1 R. C. L. Supp. -- restoration of valueless instru- 443; 4 R. C. L. Supp. 92.]
Pleading - defect -curing by amendthe ownership of valueless papers or
ment. restore them to existence if destroyed. 6. A defect in a petition to restore Pleading - implied amendments a lost deed in failing to show petifailure to prove cause of action.
tioner's interest in the property may 4. The doctrine of implied amend- be cured by amendment.
APPEAL by defendant Owens from a decree of the District Court for Ravalli County (Self, J.) in favor of plaintiff in an action brought to compel defendants to join in a conveyance of certain premises to plaintiff. Reversed.
The facts are stated in the Commissioner's opinion.
Messrs. Russell, Madeen, & Clarke, 122 Pac. 722; McKay v. McDougal, 19 for appellant:
Mont. 488, 48 Pac. 988; 32 Cyc. 1350; The complaint is insufficient as one 32 C. J. 1328-1330; Hopkins v. Walker, for specific performance.
244 U. S. 486, 61 L. ed. 1270, 37 Sup. Finlen v. Heinze, 28 Mont. 548, 73 Ct. Rep. 711; Northern P. R. Co. v. Pac. 123; Lynn v. Knob Hill Improv. Hauswirth, 49 Mont. 135, 140 Pac. Co. 177 Cal. 56, 169 Pac. 1009; Porter 516. v. Stockdale, 32 Cal. App. 792, 164 It must clearly appear that it was Pac. 33; Colm v. Francis, 30 Cal. App. the intention of the grantor that the 742, 159 Pac. 237; Joyce v. Tomasini, deed should pass title at the time, and 168 Cal. 234, 142 Pac. 67; McRae v. that he should lose all control over Ross, 170 Cal. 74, 148 Pac. 215.
it. A deed for interest in land must The complaint does not state facts take effect upon its execution and desufficient to constitute a cause of ac- livery, or not at all. tion to quiet title or support the judg- Showalter v. Spangle, 93 Wash. 326, ment.
160 Pac. 1042; Hefner v. Sealey, 175 Borgeson v. Tubb, 54 Mont. 557, 172 Cal. 18, 164 Pac. 898; Bruce Pac. 326; Ziska v. Avery, 36 Okla. 405, Mathewson, 97 Kan. 466, 155 Pac. 787;
(67 Alont. 517, 216 Pac. 828.) Hayden v. Collins, 1 Cal. App. 259, cised its right finally to dispose of all 81 Pac. 1120; Melvin v. Melvin, 8 Cal. the issues in the case, and to render App. 684, 97 Pac. 696; Doty v. Barker, a decree in accordance with them. 78 Kan. 636, 97 Pac. 964; Kenney v. Bielenberg V. Eyre, 44 Mont. 397, Parks, 137 Cal. 527, 70 Pac. 556; Curry 120 Pac. 243; Lowry v. Carrier, 55 v. Colburn, 99 Wis. 319, 67 Am. St. Mont. 392, 177 Pac. 756; Barkley v. Rep. 860, 74 N. W. 778; Pierson v. Tieleke, 2 Mont. 435; Foster v. Bender, Fisher, 48 Or. 223, 85 Pac. 621; Foote 28 Mont. 526, 73 Pac. 121; Woolman v. Lichty, 60 Or. 542, 120 Pac. 398; v. Garringer, 2 Mont. 405; Stackpole v. Central Trust Co. v. Stoddard, 4 Cal. Hallahan, 16 Mont. 40, 28 L.R.A. 502, App. 647, 88 Pac. 806; 18 C. J. 198, 40 Pac. 80; Kimpton v. Jubilee Placer § 95.
Min. Co. 16 Mont. 379, 41 Pac. 137, 42 Mr. J. D. Taylor also for appellant. Pac. 102; Love v. Shartzer, 31 Cal. 488:
Messrs. O'Hara, Madeen, & Car- El Campo Light, Ice & Water Co. v. mody, for respondent:
Water & Light Co. Tex. Civ. App. This is not an action for specific per- -, 132 S. W. 868; Kelley Lumber Co. formance, but an action to establish a v. Otelec Valley R. Co. 136 App. Div. lost deed, which can be maintained. 146, 120 N. Y. Supp. 415; Norman v.
Jacobson v. Roman, 57 Mont. 299, Eastburn, 230 Mo. 168, 130 S. W. 276; 188 Pac. 138; Cartright v. Cartright, Jackson v. Jernigan, — Tex. Civ. App. 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 77 S. W. 271; Reynolds v. Ætna 1914A, 578.
L. Ins. Co. 160 N. Y. 635, 55 N. E. 305; All that it is necessary to allege in Indiana Millers' Mut. Ins. Co. y. Peosuch complaint are the title of the ple, 65 Ill. App. 355; Grant v. Creed, plaintiff to the instrument, the de- 54 Okla. 222, 153 Pac. 1110; Tagliascription of the instrument, its loss ferri v. Grande, 16 N. M. 486, 120 Pac. and search, and failure to discover it. 730; Duclos v. Kelley, 197 N. Y. 76, 89 13 Enc. Pl. & Pr. 353;
N. E. 875. Ryan, 47 Cal. 71; Thomas v. McCor
Bennett, C., filed the following mack, 1 N. M. 369; Lloyd v. Simons, 97 Minn, 315, 105 N, W. 902; Brown
opinion: V. Anderson Cottonwood Irrig. Dist.
Plaintiff, Robert Nicholson, com183 Cal. 186, 190 Pac. 797.
menced this action against Adalaide The delivery of a deed to the gran- Nicholson personally, and as admintee, even upon condition, vests the istratrix of the estate of William title absolutely in him.
Nicholson, deceased, and Ida Owens. Mowry v. Heney, 86 Cal. 471, 25 Pac.
The complaint is as follows: 17; Hammond v. McCollough, 159 Cal.
"Plaintiff complains of the de639, 115 Pac. 216; Lewis v. Brown, 22 Cal. App. 38, 133 Pac. 331; Bias v.
fendants and for cause of action Reed, 169 Cal. 33, 145 Pac. 516; Kenney
herein alleges: v. Parks, 137 Cal. 527, 70 Pac. 556;
"I. That William Nicholson died Denis v. Velati, 96 Cal. 223, 31 Pac. 1;
in the county of Ravalli, state of Stone v. Daily, 181 Cal. 571, 185 Pac. Montana, on or about the 13th day 665; Gilbert v. North America F. Ins. of June, 1920; being at the time of Co. 23 Wend. 43; Dyer v. Skadan, 128 his death a resident of said county Mich. 348, 92 Am. St. Rep. 461, 87 and state. N. W. 277; Creveling v. Banta, 138 "II. That thereafter, and on, or Iowa, 47, 115 N. W. 598; Devlin,
about the 22d day of June, 1920, Deeds, $ 314; Rogers v. Rogers, 53
Adalaide Nicholson, widow of said Wis. 36, 40 Am. Rep. 756, 10 N. W. 2; Reed v. Smith, 125 Cal. 491, 58 Pac.
William Nicholson, deceased, ap139; Johnson v. Craig, 37 Okla. 378,
plied for letters of administration 130 Pac. 581; Follmer v. Rohrer, 158
on the estate of said deceased, and Cal. 755, 112 Pac. 544; Baum v. North- that thereupon such proceedings ern P. R. Co. 55 Mont. 219, 175 Pac. were had in the district court of the 872; Cartright v. Cartright, supra;
fourth judicial district of the state Dyer v. Skadam, 128 Mich. 348, 92 Am.
of Montana, in and for Ravalli counSt. Rep. 461, 87 N. W. 277; Flynn v. Flynn, 17 Idaho, 147, 104 Pac. 1030.
ty, that the said Adalaide Nicholson In equity cases, where the decree was appointed the administrator of was not in accordance with the find
said estate, and that the said defendings, the court has frequently exer- ant is now the duly appointed,