opinion: STERRETT OPERATING SERVICE, Inc., v. BAKER et al.
  No. 6075.
  Court of Appeals of the District of Columbia.
  Argued March 8, 1934.
  Decided April 9, 1934.
  Norman E. Sill, of Washington, D. C., for plaintiff in error.
  A. D. Smith, of Washington, D. C., for defendants in error.
  Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
  PER CURIAM.
  This case is here on writ of error to the municipal court in an action for damages for breach of warranty.
  It appears that the defendants in error, plaintiffs below, purchased from the defendant, Sterrett Operating Service Corporation, a certain three and a half ton used truck, on which a small cash payment was made and a conditional bill of sale given, under which the defendant company retained the title to the truck until the purchase price had been paid. The plaintiffs made a trip into Pennsylvania with the truck, in which the motor was discovered to be defective, and they allege that to repair the same it cost them $154.60, for which amount this suit for damages was brought.
  The plaintiffs pitch their ease for damages on an alleged breach of warranty, under which it is alleged that they “purchased from the defendant a 3%-ton G.M.C. truck on the guarantee of the defendant that the motor of said truck had been completely overhauled and was in first class condition.” No warranty was contained in the conditional bill of sale, but it is contended that the warranty was made orally by the agent of the defendant at the time the purchase was made.
  We think it unnecessary to review the testimony, as set out in the record, since the ■ plaintiffs have failed to allege a cause of action upon which recovery could be had. Defendant, at the conclusion of the plaintiffs’ evidence, moved for judgment, which motion was denied and exception reserved. A similar motion, with exception reserved, was made at the conclusion of all the testimony.
  Without considering the merits of the case, it is settled law that an action for damages for breach of warranty will not lie until the title to the property has passed. The title to the property in this case, under the bill of sale, still remained in the defendant company. Assuming, without deciding, that evidence of an oral warranty, notwithstanding the written contract, would be admissible, other remedies were open to the plaintiffs. They could have refused to make payment, and in an action in replevin to recover the possession of the truck the defense of breach of warranty could be interposed (Marks v. Frigidaire Sales Corporation, 60 App. D. C. 359, 54 F.(2d) 974); or they could have continued their payments until title passed, and then brought their action to recover in damages the difference between the price agreed to be paid and the actual value, including compensation, for loss incurred in their effort in good faith to use the truck in compliance with the alleged warranty; or they could have promptly returned the property upon discovering the defect and recovered the consideration paid, or tendered the return of the property on condition that the seller return the payments received by him.
  The law applicable to the present case, however, is stated in Benjamin on Sales, p. 865, under the subject of Action Upon Warranty, as follows: “An action for a breach of warranty may be maintained although the goods are not paid for, or though notes for the price are still outstanding. Aultman v. Wheeler, 49 Iowa, 647; Thoreson v. Minneapolis Harvester Works, 29 Minn. 341, 13 N. W. 156, and others. * * * But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due in installments, and the last installment had not been paid, it was held in Frye v. Milligan, 10 Ont. R. 509 (1885), that no remedy yet existed on the warranty.”
  The same rule is announced in 24 Ruling Case Law, p. 156, § 429, and in support of the rule are cited Bunday v. Columbus Machine Co., 143 Mich. 10, 106 N. W. 397, 5 L. R. A. (N. S.) 475; New Hamburg Mfg. Co. v. Webb, 23 Ont. L. Rep. 44, 20 Ann. Cas. 817, and note; Peuser v. Marsh, 218 N. Y. 505, 113 N. E. 494, Ann. Cas. 1918B, 913.
  The judgment is reversed, with costs.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.