disapproved on other grounds
How later courts described this case
- disapproved on other grounds
Written by the judges who cited it.
The opinion
BEATTY, C. J.,
dissenting.—Having dissented from the order denying a rehearing of this cause, I will here briefly state the grounds of such dissent.
A street-railway franchise is created and granted by the same act. If in a ease like this no franchise is granted, it is because no franchise is created. The defense to the action was not merely that the assignors of plaintiff had no title to the franchise, but that there had never been a franchise, and this was what the defendant offered to prove. If he had been allowed to make, and had succeeded in making, the proof that no franchise ever came into existence the case would have been materially different from that arising upon the conveyance of all one’s right, title, and interest in a tract of land. There would have been the wide difference between the conveyance of a thing in existence, and of a thing nonexistent, and the authorities cited to the proposition that the purchaser of a possible title to a tract of land cannot avoid payment of the
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agreed price by proving that the vendor had no title seem to me to have no application to an action to recover the agreed price of a thing which the vendor represented to be in existence, but which in fact never did exist.