dissenting. The controlling point in the present case is whether the verdict and judgment in the trover case of Tatum v. Lewis, finding the title to the diamond ring to be in Tatum and thereby causing Mrs. Loeb to lose the ring, are binding on the defendant May. If May was vouched into court or appeared in person or by attorney and took part in defending the case, then that verdict and judgment would be binding on him and would establish the plaintiff’s right to recover in the present case for a breach of warranty.
When a person is sued for breach of warranty for the sale of personal property, such person has the right to vouch his vendor into court to defend the title to the property in question. Code, §§ 38-621, 29-306. The vouchee is bound by the judgment in such case. The vendor of personal property impliedly warrants the title thereto (Code, § 96-301), and this warranty runs from the grantor to the grantee, and does not run with the article sold. When Mrs. Loeb was vouched into court by Lewis in the trover suit by Tatum for the ring, she was placed in a position to be concluded by whatever judgment that might be rendered in such proceeding. May had sold the same ring to her, and the law says he impliedly warranted the title thereto to her, just as- she had to Lewis. Lewis vouched her into court to defend her warranty of the ring to him, and when this was done I think she likewise had the right to vouch May in to defend his warranty of the ring to her. I know of no rule of law that prohibits this being done. Indeed, such is the very purpose of the law that provides that a defendant may vouch his vendor into court, that is, to avoid a multiplicity of suits where litigation over the same subject-matter can be determined and adjusted in one proceeding.
The next question is, was May vouched into court or did he appear in person or by attorney to defend or take part in the trover *797suit?' I think the evidence authorized the trial judge to so find. Mrs. Loeb testified that when she was vouched into court, she went to May and notified him of the trover suit and asked him what to do. He told her to go to his lawyer, Albert Mayer, and he would tell her what to do, and accordingly she went to Mr. Mayer and conferred with him about the case. Mr. Mayer appeared as an attorney in the case, took part in the examination of witnesses, made an argument therein, and made a motion for new trial. Mr. May was present at the trial and testified as a witness; and he paid approximately $56, one-half of the costs of obtaining the record, in order to prepare the appeal in that case. He was certainly interested in the ultimate outcome of the litigation over the ring as he had warranted the title of the same to Mrs. Loeb. In these circumstances as here presented by the record, -I think the trial judge was authorized to find in favor of the plaintiff, and therefore the judgment should be affirmed.