Alexander Coolidge vs. Nicholas H. Brigham, 5 Met. 68

Wilde, J. The principal question in this case was fully considered and decided at a former hearing. 1 Met. 547. It was then decided that the letter from the defendant to the plaintiff amounted to a warranty that the note enclosed was “ indorsed as proposed,”' or in other words, that it was indorsed as it purported to be. On this point the instructions to the jury were in conformity to that decision, and were, we think, unquestionably correct.

The only questions now to be considered are, 1st. whether the ruling of the court was correct in admitting the evidence to prove the state of the account current between the parties ; and 2d. whether the jury were rightly instructed as to the rule of damages. As to the first question, it is objected that the pass books, containing an account of the dealings between the parties, ought not to have been admitted in evidence, because some of the items were not verified by the clerk who made the entries.

But as these entries were proved to have been made by the defendant’s clerks, he having access to them, and that one of the clerks was out of the Commonwealth, and that the defendant refused to produce his books, we think the evidence was competent. These pass books are entitled to equal credit with the defendant’s other books of accounts, and must be presumed to be true transcripts from those books, unless the contrary can be proved by the defendant. As to the other question, we are of opinion that the instructions to the jury, as to the rule of damages, were correct.

In pursuance of these instructions, the jury must have found that the suit against D. M. Whitney was commenced by the plaintiff in good faith, and without knowledge of the forgery, and that the plaintiff gave seasonable notice to the defendant of the pendency of that suit, requesting him to furnish evidence of the genuineness of the indorsements. Under these circumstances, we are not aware of any rule of law by which we are authorized to disallow the costs recovered against the plaintiff in that suit, as part of the plaintiff’s actual damages.

On the contrary, we think the rule established in actions of covenant for a breach of the covenant of warranty in the conveyance of real estate must govern the present case. In such cases, the covenantor is held responsible, after an eviction, for the costs of suit attending the eviction, because he is bound to protect the covenantee in defending the title warranted. Swett v. Patrick, 3 Fairf. 9. Staats v. Ten Eyck, 3 Caines, 115. Bennet v. Jenkins, 13 Johns. 50. And we perceive no distinction, in reason, between such a covenant of warranty and a warranty on a sale of personal property.

Nor do the authorities support such a distinction. On the contrary, it was held, in Lewis v. Peake, 7 Taunt. 153, and 2 Marsh. 431, that where the buyer of a hnrse with warranty resells him with warranty, and, being sued thereon, offers the defence to his vendor, who gives no direction as to the action, the buyer, after unsuccessfully defending that action, is entitled to recover the costs thereof from his vendor, as part of the damages occasioned by his breach of warranty. The same doctrine was also held in Blasdale v. Babcock, 1 Johns. 517.

Another objection was made, at the argument, to the assessment of damages, which however was not made at the trial, and respecting which no instructions were given. This objection, therefore, cannot be now considered. The objection is, that the value of the note in question ought to have been estimated by the jury, and the amount deducted from the amount due on the note. This undoubtedly would have been done, if the defendant’s counsel had requested it.

But the defendant will suffer no damage from the omission, as he is now entitled to the note ; and if the plaintiff should refuse to deliver it to him, he will be liable to an action for the value. Judgment on the verdict.