The opinion
Petition for rehearing denied. January 18, 1938
On Petition por Rehearing
( 75 P. (2d) 9 )
LUSK, J.
In the opinion reversing the judgment, we hold that § 64-509, Oregon Code 1930, which re *184 quires the buyer of goods to give notice of breach of warranty as a condition precedent to recovery therefor, has no application to a case where the buyer is suing for breach -of warranty of title. We said then that we had not been referred to any case, and had not found any, in which that section had been invoked for failure to give notice of breach of warranty of title.
In a petition for rehearing filed by the respondent, our attention is called to the case of Old Pueblo Motors, Inc., v. Ysias Abarca, 37 Ariz. 29 ( 288 P. 666 ), with the statement that it holds that such notice is a necessary condition precedent in this character of case. A reading of the opinion in that case discloses that the construction of the cited section (which is the same as § 49 of the Uniform Sales Act) was not involved, but that the sole question decided was, that in an action for breach of warranty of title, before a buyer can rely on a judgment in favor of one claiming the goods by paramount title, as binding upon the seller, he must allege and prove that the seller had been given notice of the adverse claim, and an opportunity to defend against it. This decision accords with established principles, but as there was no claim of res adjudicata in this case it is not in point here. That the buyer is not bound to await legal action against him before surrendering the goods, there can be no doubt. If satisfied of the insufficiency of his vendor’s title, and that the true owner may recover his property in an action, he may surrender it and recover his damages in an action against his vendor by affirmatively establishing that his vendor was without title: I Williston on Sales, (2d Ed.) 427, § 221.
The petition presents nothing else that was not heretofore argued and carefully considered by us, and *185 requires no further discussion other than to say that counsel for respondent labors under a misapprehension in assuming that we hold that the sale of an automobile is not governed by the provisions of the Uniform Sales Act. Nothing in the opinion warrants that assumption.
We adhere to our former opinion, and the petition for rehearing is denied.
Bean, C. J., and Bailey and Rand, JJ., concur.