Allen, 57 Pa. 482 (Pa. 1868)

The opinion of the court was delivered, by

Sharswood, J.

The doctrine that the vendor of chattels in

possession impliedly warrants the title, extends to choses in action: Ritchie v. Summers, 3 Yeates 531; Charnley v. Dulles, 8 W. & S. 361; Swanzey v. Parker, 14 Wright 450. As in the sale of other things, he undertakes not for their quality, that they are really worth the money they represent, but that they are what they purport to be. In other words, he warrants the genuineness of the claim upon them: Lyons v. Divelbis, 10 Harris 185. Every obligee or holder of an obligation, who assigns it to another, especially if he does so for a valuable consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assignment, all the facts and circumstances connected with the execution and delivery of the obligation; and, after being thus advised, the assignee agrees to take it at his own risk: Stroh v. Hess, 1 W. & S. 153. If the assignee of a bond cannot recover it from the obligor by reason of the consideration of it having failed before the assignment of it was made, he may recover back from the assignor the money he paid for the assignment, whether he hold his guaranty or not: Kauffelt v. Leber, 9 W. & S. 93. Like other warranties of title, as of seisin or right to convey, it is broken as soon as it is made, if in point of fact it is not a valid security. The assignee need not wait until it is due before bringing suit. His right of action accrues immediately: Holden v. Taylor, Hob. 12; Bender v. Fromberger, 4 Dallas 438; Stewart v. West, 2 Harris 336. Nor is it necessary to

tender a return of the security before the commencement of the action: Ritchie v. Summers, 8 Yeates 531; Fielder v. Starkin, 1 H. Blacks. 19. This was a special action on the implied warranty, and not for money had and received, founded on a rescission of the contract,'in which the rule may be different. The second count in the declaration sets forth the warranty without any allegation of an offer to return the bonds to the defendant. Indeed, though this point is presented in the printed argument of the plaintiff, it does not appear to have been made in the court below, nor is it contained in any of the errors assigned. These principles dispose of the 2d, 3d and 5th assignments of error, and so much of the 6th as relates to the refusal of the court to charge as requested in the 6th point of the defendant below.

It remains to consider whether the obligations or bonds of the school directors of Jacksom district, of Potter county, which had been sold and delivered by the plaintiff in error to the defendant, were legal and valid securities, binding upon the school district, by whose authorities they were executed. They were issued under the Act of March 15th 1865, Pamph. L. 24, entitled “ A further supplement to an act relating to the payment of bounties to volunteers,” approved March 25th 1864. After enacting that the authorities mentioned in the act to which it was a supplement should have power “to raise a sufficient sum to pay a bounty to each volunteer enlisted under the present call or who may hereafter be enlisted under the’pending or future calls, not exceeding $400,” it goes on to provide “that it shall and may be lawful for the authorities to pay the amount of bounties herein prescribed to any person drafted into the military service of the United States and serving therein, or to the families of the same, at such time and in such sums as the said authorities shall deem proper; or to any person furnishing a substitute for said service, who may be credited to the quota of any county, city, ward, borough, township or enrolment district of this Commonwealth.” Flynn, the plaintiff in error, was drafted into the service of the United States from the township of Jackson, in February 1865, and the bonds in question were issued to him upon his agreement to put a substitute into the service. In point of fact he never did put in a substitute, and never was-mustered into the service himself. According to the testimony of ICilbourn, his own witness, he reported to the deputy provost-marshal, was examined and held to service and then furloughed. The war closed, and all drafted men not mustered into service were discharged in April 1865, by general orders from the War Department. The school directors had no authority to pay money to any person on his mere agreement to furnish a substitute, but only to a person actually furnishing one. Even if they had, yet the consideration of these bonds failed, by reason of his failure to perform his agreement,

which would be equally effectual as a defence to the school district. So payment could not be made, nor, of course, bonds issued to a drafted man until actually mustered into service. The words of the statute are express and imperative, “ drafted into the military service of the United States and serving therein.” These considerations dispose of the 1st and 4th assignments of error.

As to the answer of the court to the plaintiff in error’s 6th point, it is hardly necessary to say, on the view we have taken of the case, that the fact that the sale of these bonds was in pursuance of a direct authority given to him by the school directors, •would not make them valid or give the defendant in error any -better title than the plaintiff himself had.

Judgment affirmed.