GRIST v. WILLIAMS. SHEPHERD, J.: According to the findings of the jury the plaintiff complied in every respect with the terms of the contract of sale and the potatoes were duly shipped to the defendant. Upon their arrival in the city of Norfolk, Virginia, the point of destination, the defendant wrongfully refused to receive them, telegraphing to the plaintiff, "We cannot receive them; wire us when and where to ship for your account. Answer by wire immediately." It is well settled that, under such circumstances, the vendor had a right, either to rescind the contract or resell the potatoes and hold the vendee responsible for the difference in price. It is also well established that such a resale by the vendor "is not per se evidence of a rescinding of the contract." Hurlburt v. Simpson, 3 Ired., 233. When the vendor makes such a resale he is considered as acting as the agent of the vendee (1 Benjamin Sales, 1077, note) and as he has a right to act as such agent for that purpose, we are unable to see why, in this case (considering the perishable nature of the article, the necessity for immediate action and the intervening distance) the vendor could not direct the vendee to make the sale without necessarily rescinding the contract. In the absence of any further testimony as to what actually transpired between the parties we cannot, merely upon this correspondence, reverse the finding of the jury that the contract was not rescinded. The exception addressed to the ruling of the Court excluding the testimony as to the indebtedness of several other parties in Washington, N. C., to the defendant, cannot be sustained. The testimony could not have affected the suspension of the statute of limitations under The Code, § 162, as the fact of the possession of property in the State by a non-resident does not put the statute in force so as to bar his personal liability. The real facts respecting the alleged rescission, being evidenced by the correspondence, and not being disputed, the testimony offered was not relevant for any other HODGES V. WILKINSON. purpose than to show that the statute was suspended by reason of the non-residence of the defendant. If admitted for any other purpose, without objection, the defendant had no legal right to introduce evidence in its rebuttal. In looking over the record we can find no error, and the judgment must, therefore, be Affirmed. JOHN W. HODGES v. W. H. WILKINSON. Assignment-Chattel Mortgage-Evidence-Burden of ProofSale-Warranty-Possession. 1. A warranty of title is implied in sales of chattels; this implication arises upon proof of sale, and thereupon the burden is cast upon the party denying the warranty, or resisting a recovery upon it, to show any special agreement which will relieve him from the liability. 2. It is not essential to a recovery in an action upon an implied warranty in the sale of a chattel to show that the plaintiff has been deprived of possession under legal process; it is sufficient if he shows the paramount title is in another who has acquired possession. The burden of proving the true title in another is upon the plaintiff. 3. The assignee of a chattel mortgage acquires an interest in the debt secured and the property pledged, which will be protected in Courts of law, as well as in Courts of equity; such assignment may be either with or without seal; it need not be registered, and may be proved as any other endorsement. 4. In the trial of an action upon an implied warranty in the sale of a horse, it was in evidence that the true owner had brought suit against plaintiff for possession. and upon claim and delivery proceedings had been put into possession, but the cause was still pending: Held, (1) The record of that suit was competent evidence to show possession in the true owner; and (2), in connection with other circumstances, to show the paramount title in him. HODGES V. WILKINSON. APPEAL from Justice of the Peace, tried before Brown, J., and a jury, at Fall Term, 1891, of Beaufort Superior Court. The pleadings were oral. The contentions of the parties on the trial in this Court were as follows: The plaintiff alleged that he had exchanged a mule with the defendant for a horse; that the defendant impliedly warranted the title to said horse, and that there has been a breach of said warranty; that at the time of said exchange there was a valid outstanding mortgage on said horse, unknown to plaintiff; that the quiet possession of the plaintiff of said horse had been disturbed; that the horse had been taken by one H. W. Wahab, by virtue of said mortgage; that the plaintiff had been endamaged to the amount claimed in the writ. The defendant denied said allegations, and, in particular, denied that said Wahab was the legal owner of said mortgage, or that there was anything due thereon, or that there had been any legal eviction, or any breach of the alleged warranty, and contended further that a suit was pending in this Court wherein said Wahab is plaintiff, and the said John W. Hodges, the plaintiff herein, is defendant, wherein said horse was taken by said Wahab, the plaintiff therein, under claim and delivery proceedings, which suit has not terminated, and that this action cannot be maintained by Hodges until after it is terminated There was much conflicting testimony introduced by plaintiff and defendant. The entire record in the action of H. W. Wahab v. John W. Hodges, including the claim and delivery papers, was also introduced. The material portions of the charge were as follows: First issue.—“ That if defendant exchanged a horse for the mule with the plaintiff, and traded the horse to the plaintiff as his, the defendant's horse, if nothing else appeared, the law implies a warranty of title upon the part of the defend HODGES v. WILKINSON. ant. But this warranty is an implied warranty. There is no evidence of an express warranty in this case. "While the law implies a warranty of title when the vendor sells chattel property as his own, yet such implication may be repelled by the words or statements of the vendor as is claimed by defendant in this case. If Wilkinson stated to the plaintiff Hodges at the time of the trade, speaking in respect to the horse, 'that he would not warrant anything,' then that is a refusal to warrant at all and you should answer first issue, No. But if you believe Wilkinson traded the horse, and nothing further was said or claimed by plaintiff, then you will answer first issue, Yes. The burden of proof is on defendant to repel the implication of warranty. If the plaintiff asked Wilkinson, Will you warrant this horse to be sound?' and the defendant said he would not, and nothing more was said, this would not be sufficient to repel implied warranty of title. The defendant must have indicated to the plaintiff that he refused to warrant title." Second issue.-"Has there been a breach of the covenant of warranty? The warranty of title implied by the law in the sale of personal chattels is a covenant for the quiet enjoyment and possession. Therefore, before the plaintiff can establish a breach of the alleged covenant of warranty, the burden of proof is on the plaintiff to show by a preponderance of evidence that his possession of the horse has been disturbed, either by lawful process or by some one holding the paramount true title to the horse. "The plaintiff has undertaken to show both a legal eviction or seizure by legal process, and further, that the horse was taken by H. W. Wahab, holding a paramount superior title to Wilkinson and Hodges. The plaintiff has put in evidence the record in the case of H. W. Wahab v. John W. Hodges "There is no final judgment of the Court in the suit, and if there was no other evidence the above would be insuffi HODGES V. WILKINSON. cient to establish Wahab's superior claim, and would not be sufficient evidence of a breach of the covenant of warranty. The plaintiff undertakes to go further and show as a matter of fact that at the time of the trade H. W. Wahab held a valid mortgage on the horse, and that he took him by virtue of his mortgage. "Upon this branch of the case the Court charges that, if you believe that W. H. Green owned this black horse before Wilkinson got him, and had executed a mortgage on him, which is in evidence, and was a valid lien on said horse at date of the trade, and that said mortgage was due and unpaid and became the property of Wahab, and that Wahab took the horse from Hodges by virtue of such mortgage, then there has been a breach of warranty, and you should answer second issue, Yes. "It is true, that any defense is open to Wilkinson in this action against the validity of Wahab's claim that was open to Hodges in the suit Wahab brought against him, and, therefore, it is incumbent on plaintiff to show that at the time Wilkinson traded him the horse the mortgage was a valid lien on him, was unpaid, and that the horse has been taken from him by virtue of it and by the owner of it." There was a verdict and judgment thereon for plaintiff, and defendant appealed. Mr. C. F. Warren, for plaintiff. AVERY, J.: The warranty of a title implied in every sale of a chattel has been declared by this Court to be in effect a covenant for quiet enjoyment. Cowan v. Silliman, 4 Dev., 46; Webster v. Laws, 89 N. C., 224. The distinction drawn by the Supreme Court of Kentucky between the breaches of express and implied warranties of personal property (Scott v. Scott, 2 Marsh, 218; Tipton v. Triplett, 1 Metcalf, 570) has not |