#### MILTON HUDGINS *vs.*JOSIAH PERRY.

An implied warranty cannot extend to defects, which are visible and alike within the knowledge of the vendee and the vendor, or when the sources of information are alike open and accessible to each party.

Appeal from the Superior Court of Law of Perquim-ans County, at the Spring Term, 1846, his Honor Judge Bailey, presiding.

*103This was a special action on the case. The facts are as follows. One Stephen Elliott, being indebted to James C. Skinner by bond, proposed to pay it, by a bond or note which he held on the defendant. To this arrangement Skinner assented, so far as to agree to wait for his money, until Elliott could recover the amount due him, from Perry. The latter, not wishing to be sued, proposed to Elliott and Skinner to furnish Elliott with a note, upon which suit might be brought to the use of Skinner. To this both Skinner and Elliott agreed, but the note of no particular person was mentioned. Subsequently, P;erry brought to Elliott a note given by James C. Gordon and payable to Exum Elliott and, Co. upon which Stephen Elliott caused a writ to issue, in the name of the payees, and it was by his direction endorsed “to the use of James C. Skinner.” Gordon’s note was not endorsed by the payees, and when judgment was obtained and the money collected, it was paid to Skinner. The latter was not present, when S-. Elliott received the Gordon note from Perry, and, when informed by Elliott of what had been done, refused to reeeive it in payment of Elliott’s note to him, but agreed, if the money upon it was collected, he would receive it and credit the note in his hands. The parties, Elliott and Skinner, did not exchange notes, but the note due by Perry was retained by Elliott, who-, after Skinner’s refusal to receive absolutely the Gordon note, transferred Perry’s note for a valuable consideration, to the plaintiff in this action. The defendant, in discharge of his note, passed to the plaintiff the receipt which had been given by an attorney, in whose hands the Gordon note was, and who was to prosecute the claim to judgment. The attorney’s receipt is- in the following words“ Received August 11th, 1843, of Josiah Perry, Esq., one note, executed by Joseph Gordon, payable to- Exum Elliott & Co. for $101, upon which suit *is*brought in Perquimans County Court, which I am to prosecute to judgment.” This transaction took place between the plaintiff and the *104defendant, while the suit was pending on Gordon’s note, and, at the same time, the plaintiff surrendered up to the defendant his note. The action is brought to recover from the defendant the amount of the judgment against Gordon and which had been received by James C. Skinner. Upon an intimation from the presiding Judge, that the action could not be sustained, the plaintiff submitted to a non-suit and appealed to this Court.

*Jordan*and *Heath,*for the plaintiff.

*A. Moore,*for the defendant.

Nash, J.

delivered the opinion of *the*Court. We concur with his Honor, that the action cannot be sustained. If the defendant had received the Gordon money, it would have been received by him to the use of the plaintiff, and the equitable interest, conveyed by him to the plaintiff, would have been a sufficient consideration to support the implied promise to pay. But here the money has been received by Skinner to his own use, though wrongfully. The plaintiff’s declaration contains two counts, the first upon a warranty of title and right to transfer, the second upon a mere contract that the claim, thereby transferred, was good and collectable, and should be collected for the use of said Hudgins. The breach assigned in the first count is, that the said Perry had not then good right “ to pass to said Hudgins said receipt and note and to authorise him to receive the amount when collected, for that previous to' said contract said Perry, the defendant, had duly passed said note to one James G. Skinner, and authorised him: to receive the money when collected, to his own use.” The breach assigned in the second count is the same. The answer to the breach in each count is the same, as each count and each breach is substantially the same. An implied warranty cannot extend to defects which are visible, and alike within the knowledge of the vendee and the vendor, or when the *105sources of information are alike open and accessible to each party. Here, from the receipt of the attorney, it was obvious that Perry the holder had no legal title to the Gordon note. The note was payable to Exum Elliott and company, not assigned by them, and the suit was in the name of the firm. Perry, therefore, upon the face of the instrument, had no legal fight to it, nor could he so transfer it as to clothe his assignee with any legal interest. The implied warranty, therefore, did not arise, for there is no pretence of any fraud on the part of the defendant Perry. It is evident all the parties mistook the nature of their rights. The' legal title to the Gordon note *never*passed out of Exum Elliot & Co. and they were the only persons, who had in law a right to receive the money upon it. When Sir. Skinner received it, he received it to their use at law and at law is. answerable to 'them. It is' very.plain how the difficulty has arisen! The contracts or agreements between Perry and Stephen Elliott and between the latter and Skinner were inchoate and never executed. S. Elliott accepted the Gordon note only upon condition, that it should serve to discharge his debt to Skinner, and Perry transferred only with the view to pay his debt to Elliott.' When the latter apprised Skinner'that the Gordon note was received and put in suit for his benefit, he refused to receive it in payment of his claim against Elliott, who thereupon returned it, doubtless, to Perry ; for the attorney’s receipt is given to Perry, the note being received from him. Considering the contract between him and Skinner at an end, Elliott, who still retained his note on Perry, for a valuable consideration, sold or assigned it to the plaintiff, and Perry, upon the payment of it being demanded by Hudgins, might well consider his inchoate contract with Elliott at an end, as it certainly was. • No legal title to the Gordon bond had ever passed to Elliott, and the purpose, for which it had been delivered to him having failed and it having been returned to -him by Elliott, and his note as~ *106signed to Hudgins, he, the defendant, was entirely at liberty, to make what use- of it he could in meeting the-demand upon his note against himself- For that purpose-it had doubtless been transferred to him by the original owners. He therefore had full right to transfer his-equitable interest to the plaintiff.. But that did not in-, law authorise the plaintiff to receive the money when collected, nor had Perry such right. When Skinner received it, he received it to the use of Exum Elliott & Co., who were the legal owers. As however Exum Elliott & Co. lay no claim to the money, there cannot be a doubt,, but that before another, tribunal the rights of the plaintiff to the money would be- recognized and enforced.

Ruffin, C. J.

The declaration contains- three counts; The first is for money had and received ; and the other two are upon special, promises. The second is, in,substance, that the defendant was indebted to the plaintiff by bond, and, in consideration of the acceptance of' the same by the plaintiff in payment of the bond and cancelling the bond, the defendant passed and assigned, to the plaintiff a promissory note made by Joseph Gordon and payable to Exum, Elliott & Co. for $-101, which said, note was then in, the hands- of A.. M- Esquire, an attorney at law, who had before undertaken to bring suit on the note and obtain judgment thereonand that the defendant,, upon the consideration aforesaid, undertook and promised, that, notwithstanding any act or thing done or suffered, by the defendant, he had good right to- pass an& assign to the plaintiff the said note, and that the plaintiff might, and should, receive to his own use the sum for which the said note was given. It then lays a breach, that the defendant, hadi not the right to transfer the debt to-the plaintiff, and could not authorize him to receive-th® money due thereon; for that, before that time, the. defendant had duly passed the note to James C- Skinner, and authorized him .to. receive to his own use the same-*107money, and that Skinner by means thereof became eriti-•titled to the money when recovered, and did afterwards ■receive it and prevent the plaintiff from receiving any part thereof.

The next count lays, that, in payment of the bond to the plaintiff, the defendant gave him an order on A. M. Esquire, an attorney at law, to pay to the plaintiff the sum due on Gordon’s note, when the same should be collected by him, and then undertook that the note was good, and that the money mentioned therein should be -collected and paid by the said A. M. to the plaintiff for his own use in a reasonable time. It then lays a breach, •as before, that the defendant had before passed the debt to Skinner and authorized him to receive and hold the ■money.

There is no evidence tending to support the count for money had and received-; nor the second special count. There was no order given on the attorney, who was not to collect the money, but only get a judgment. The case therefore turns on the second count, which is founded on a transfer of Gordon’s debt in payment of the debt of the ■defendant to the plaintiff.

It will be perceived, that the defendant’s liability is not placed upon the ground, that the note belonged to Exum Elliott & Co. the payees, and not to the defendant; nor upon the ground, that Gordon did not owe the money, or was insolvent, nor upon any other ground depending •upon a general guaranty. But this count puts the case •upon the single point, that the defendant undertook, that he had done no act, whereby the plaintiff should be prevented from receiving the money due from Gordon on the note, and that, notwithstanding any act by the defendant, •the plaintiff might and should receive the money to his own use. The decision of the point Is not necessary in this case ; but it may be admitted, that the legal effect of the immediate transaction between these parties •amounted to such an undertaking as is laid in the count; *108upon the ground, that passing a debt to another for'a valuable- consideration imports an engagement; at least, thát the assignor has done nothing and will do nothing rendering the.transfer ineffectual. For example, that it is to be implied, that a person stipulates that he has not collected the money, and that he will hot take it. Of course the engagement must include also the acts of other persons under his authority .or a title derived from him. But,, if it be yielded, that .such an undertaking may be inferred in this case, still it remains for the plaintiff to shew a breach on the part of the defendant. Here a breach is stated, that the defendant ’ had previously transferred Gordon’s note to Skinner and authorised him to receive the money due *on it to*his own use, and that he has done so. Now, that is not true. The declaration imports that there was an absolute'assignment to Skinner. That was never true. There was,'at. most', a conditional agreement, at one time, that Skinner should have the. money, that should be recovered from Gordon. Bu't..in the events that occurred, Skinner had no right to it. There was no agreement between Skinner and the defendant, by themselves. All three, Skinner, S. Elliott, and the defendant, were parties to the agreement that was made ; and an essential part of it was, that the money that should be recovered on any bond, furnished by the defendant, should be,applied, in'the first place, to the.credit of the defendant’s debt to S. Elliott. In truth that was the only part . of the agreement'between the three, which was beneficial to this defendant. There was no assignment-to Skinner . in the nature of an endorsement of a negotiable instrument, .so as to Vest the legal right in *him; hut only*a verbal agreement, conferring an authority on Skinner to receive the money for certain • purposes — one, and the first of which was, that, if S. Elliott would forbear to sue Terry on his bond until judgment could be obtained on Gordon’s note and the money collected, the money should be applied in payment of Perry’s debt to S. Elliott, and *109tbeu in payment of Elliott’s debt to Skinner. That was clearly the understanding between those persons ; and it could have been no other. It was, plainly, conditional, as just mentioned ; for the-present defendant had no motive for agreeing to transfer the claim but to pay his own debt. From the nature of the agreement, then, Skinner’s right to this money was dependent- upon the act of S. Elliott, namely, in giving or deeding a credit therefor on Perry’s debt to him; and, therefore, when S. Elliott parted from the defendant’s bond, the whole arrangement fell through. It cannot be supposed, that the defendant meant to transfer Gordon’s note in payment of S. Elliott’s debt to Skinner, and not in payment of his own debt to Elliott. When Elliott disabled himself from giving the defendant the credit for which he had stipulated with the other- two, Skinner had no longer any right to touch the money; and his receiving it subsequently was wrongful as against the defendant and not by his authority. For this reason the judgment ought to be affirmed.

Pan Cukiam. • Judgment affirmed.