Kwiatkowski v. Hoislbauer.

[13 Ohio

officer. His credibility is not questioned, nor was there any evidence given tending to contradict his testimony.

The plaintiffs went to trial apparently under the mistaken impression that they were required to establish fraud in order to make out a case. Under Section 8393, General Code, there is an implied warranty on the part of the seller that he has a right to sell the goods, and there is a further implied warranty that the buyer should have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale. On principle, therefore, it appears that when defendant sold the goods, there was an immediate breach of the implied warranty of right to sell. If there was a breach of warranty by the seller, the Sales Act, Section 8449, General Code, authorizes the buyer at his election to rescind the sale, offer to return the goods to the seller and recover any part of the price which has been paid. The seats had an approximate value of $900 and constituted a substantial part of the goods sold.

The principal contention made on behalf of plaintiff in error is that the evidence fails to show any eviction or demand for possession made by the superior title, and that such demand or eviction constitutes a condition precedent to the right to sue. Under the circumstances of this case the owner of the seats would not make its claim to them until the expiration of the five-year lease, as the buyers were assignees of the lease and the seats were part of the premises for which they were paying rent. If the buyers were obliged to await the expiration of the five-year period, their theoretical right to

App.]

Kwiatkowski v. Hoislbauer.

get their money back from the seller might lose its value.

Must there be a claim or eviction before the buyer can get redress? As to sales of goods the authorities at common law are in some conflict as to this question. The effect of the provision of the Sales Act, Section 8449, General Code, would seem to give the buyer of chattels the right to proceed immediately, though his possession had not been disturbed. (See Williston on Sales, Section 221.) By pursuing this course, the buyer assumes the burden of establishing the infirmity of the seller's title. Jordan v. Van Duzee, 139 Minn., 103, 107.

Under what are practically the undisputed facts the record presents a case of breach of the implied. warranty of title. The defendants in error have prosecuted the right to rescind in accordance with the statute, which was but declaratory of the Ohio law (Byers et al. v. Chapin, 28 Ohio St., 300), and are entitled to a judgment. The irregularities in the procedure have not prevented the accomplishment of substantial justice.

The judgment will be affirmed.

Judgment affirmed.

HAMILTON and CUSHING, JJ., concur.

Judges of the First Appellate District, sitting in place of Judges DUNLAP, WASHBURN and VICKERY, of the Eighth Appellate District.

Depositions-Refusal of defendant to testify-Discovery of evidence before trial - Contempt and habeas corpus - Right to take depositions - Distinguished from right to use 11497, 11525 and 11526, General Code.

Sections

A defendant to an action, who has been served with process, and whose deposition is being taken in advance of the trial at the instance of the adverse party, cannot refuse to answer questions solely upon the ground that the object of the deposition is to discover defendant's testimony, where the questions are both competent and pertinent under the petition filed.

(Decided June 5, 1919.)

ERROR: Court of Appeals for Richland county. Messrs. Brucker, Henkel, Mabee & Brucker, for plaintiff in error, C. E. Krabill, constable.

Mr. C. H. Workman, for defendant in error, Delilah Berger.

SHIELDS, J. The following facts appear of rec

ord:

On February 13, 1919, one Louis Frietchen commenced an action in the court of common pleas of Richland county against John Berger, Delilah Berger and Della M. Berger, for damages growing out of the alleged negligent, careless and unlawful operation of an automobile upon certain streets in the city of Mansfield, in said county, on September 25, 1918, whereby said Louis Frietchen was struck and thrown violently to the street and permanently injured, as is more particularly described in his petition.

On February 26, 1919, after service of summons was made upon defendants in said action, the plaintiff's attorneys caused subpoenas to issue for the

defendants Delilah Berger and Della M. Berger, commanding them to be and appear before one Wm. F. Black, a notary public in and for Richland county, on the 28th day of February, 1919, at the law office of the plaintiff's attorneys in the city of Mansfield, in said county, to be examined as witnesses as on cross-examination, in behalf of the plaintiff in said action; that pursuant to such process issued, above named defendants duly appeared at the time and place stated, when the said "Delilah Berger being duly sworn was introduced as a witness as upon cross-examination," who, after making answers to the usual preliminary questions as to her residence and occupation, was interrogated as to the accident occurring at the intersection of the streets mentioned, at the place mentioned, as stated in the petition, when she refused to answer for the reasons hereinafter stated in the following affidavit, which, on the advice of her counsel, she made and filed at that time with the said notary public:

"No. 13806. Louis Frietchen, Plaintiff, vs. John Berger et al., Defendants.

"AFFIDAVIT.

"State of Ohio, Richland County, ss.:

"Delilah Berger, being by me first duly sworn says that she is one of the defendants named in the above style cause of action, and the daughter of the defendant, John Berger herein, that the cause in which her deposition is to be taken or to be attempted to be taken is now pending in this court; that she will of necessity be a witness in the cause,

and will be present to testify in the case and to subject herself to examination and cross-examination; that the issues in the case have not yet been made up; that no answer has been filed to the petition of the plaintiff herein, Louis Frietchen, and that the time within which defendants are required to plead has not yet expired; that she is informed by her counsel and believes the fact to be that her deposition is not about to be taken in good faith and for the purpose of being used as testimony in said cause but for the purpose of finding out what her testimony and that of the defendants will be at the trial, in advance of trial, and solely for the purpose and with the single object to discover the manner in which the defendants' defense herein is to be established, and to compel the defendants herein to disclose in advance before trial their evidence which relates exclusively to said defendants' 'defense.

"That she is now and has been for a number of years a resident of the county of Richland and the city of Mansfield and expects to be a resident of this county and this city; that she is in robust health, is not suffering from any infirmity, and does not expect to be imprisoned, and that her testimony is not required on any motion made or to be made but is asked wholly to discover the merits of the defense to plaintiffs' action.

"And further affiant sayeth not.

"DELILAH BERGER.

"Sworn to and subscribed before me this 4th day

of March, 1919.

Wm. F. Black,

"Notary Public."