The opinion of the court was delivered by
Hebard, J.The defendant, to relieve himself from the imputation of having improperly obtained possession of the notes, offered the witness, Stephen Cummings, “ to prove that he obtained possession of a part of said notes from the attorney who held them, and delivered to the defendant a *479part thereof; and that defendant purchased the same of him in good faiih, and for good consideration, and these ■were all he had collected.”
The same principle that is involved in this case, was decided in the case of Parker v. Hammond, 13 Vt. R. 242; and little need be said in illustration of this case more than to refer to that.
It is a well settled principle of law, that, upon the sale of a chattel, the vendor warrants the title, and, in the case of a failure of title, upon suit brought, the measure of damage is the value of the chattel, and the cost of the former suit. Lewis v. Peake, 7 Taunton, 153.
The same doctrine is laid down in 3 Stark. Ev. 1647, that “ a witness who is answerable to vendee, in case the title turn out to be defective, is not competent to support the title in an action aganst his vendee, founded on an alleged defect of title.” If the plaintiff recovers in this suit, the defendant’s claim upon the witness would be for the amount of the notes, and the cost of this suit. 2 Stark. Ev. 894. Stephen Cummings, having obtained these notes through the agency or permission of the attorney, would be liable to the plaintiff for the amount, whereas, having sold them to the defendant, with an implied warranty of title, at least, he would be liable to the defendant, on failure of title, in the amount of the notes, and the cost, of this suit. He, therefore, has a preponderance of interest in favor of the defendant, and was not competent without a discharge.
Judgment reversed.