Hahn v. Wilde

WASTE, C. J.

The defendants appeal from a money judgment in the sum of $7,000, plus interest and costs.

Plaintiffs and defendants entered into a written agreement for the exchange of properties. Among the items of property to be transferred to the plaintiffs were seventy shares of the U. S. Grant Hotel Company, of the par value of $100 each. Certificates for these shares were delivered to the plaintiffs, but they allege that at the time of the purported transfer the defendants were without right, title or interest in or to said shares by reason of the prior sale of the stock to a third person for nonpayment of an assessment levied thereon. The complaint then avers that the seventy shares were of the par value of $100 each, aggregating $7,000, and that plaintiffs had received and accepted them in exchange at their par value. This latter allegation is denied by the defendants in their answer. There is also an allegation that plaintiffs had offered to return the asserted worthless certificates to the defendants, the tender having been refused. Defendants introduced no evidence, but rested after their motion for a nonsuit, made at the close of plaintiffs’ ease, had been denied. Finding all of the allegations of the complaint to be true and those of the answer

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to be untrue, the trial court gave judgment for the plaintiffs as prayed for.

The parties disagree as to the nature of the action. Appellants insist that it is an action for rescission, or the equivalent thereof, and that in the absence of a return or tender of everything received under the contract respondents are not entitled to judgment. Respondents, on the other hand, state that it is neither an action for rescission nor an action for damages for breach of contract, but, rather, an action for breach of implied warranty of title, or, otherwise stated, an action “to recover the amount paid for . . . shares of stock, for which the respondents gave a valuable consideration, and which was totally lost to them [respondents] because of failure of title”. Whatever title be assigned to the action, it definitely appears from the averments of the complaint that the respondents are merely seeking to recover that which they assert was paid by them for seventy shares of stock, title to which they never received. In such an action it is essential, in order to determine the damage occasioned to the plaintiff by the nondelivery of the article sold, that he establish, among other things, the purchase price or consideration paid therefor. In the absence of such proof the detriment suffered by the vendee is incapable of calculation.