Beckmann v. Bormann

3 E.D. Smith 409

• Court: New York Court of Common Pleas
• Decided: November 15, 1854
• Status: Published

Opinion

By the Court. Ingraham, First J.

The referee has found that by the terms of the lease, the fixtures, including the chimney, kitchen, and range, were to be a part of the freehold. That the defendant sold them to the plaintiff, with other property, for $295. That he also transferred the premises to the defendant by a lease for two years, and that he at the time signed a paper, in which he declared himself to be the owner of the kitchen and chimney.

During the term, the kitchen and chimney were under-mined in digging a sewer, and were thereby destroyed. Subsequently, the original landlord entered and took possession of the premises for non-payment of rent, and afterwards leased the premises to another person.

The plaintiff claims damages for the want of title of the defendant to the chimney and kitchen, and the referee has awarded $102 60.

The finding of the referee is in accordance with the first point of the appellant, that only $295 were paid for the lease and fixtures together, and he has accordingly allowed damages only for the value of the kitchen, chimney, and range.

In this property the defendant had no interest, except the right to use it for the term of the lease. During that period he had a right to the possession, and to transfer it to another. But he had no title to the property beyond the lease, and when he certified himself to be the ■ owner of the property, and declared that he had sold the same, and received the pay therefor, he became responsible to make good his title thereto.

In such a case, the purchaser is not bound to take notice of the vendor’s title. A vendor gives an implied warranty of title in selling personal property, and in this case he went further, because he expressly averred himself to be the owner.

The subsequent destruction of the property by a third person does not relieve the defendant. The right of action accrued when the property was sold, although the cause for bringing the action was not discovered till afterwards. When the property was destroyed, the tenant had a right of action for the injury during the term only, and the original landlord for the damages to the fee, and whether destroyed or not was immaterial to both the parties to this action, except so far as the defendant’s term was unexpired.

So, also, the forfeiture of the lease could not relieve the defendant from damages for the breach of his contract previously. Whether any deduction should be made in the damages on account of the destruction of the property, need not be decided, because no such point was made before the referee.

The plaintiff was entitled to recover, and I see no ground on which we can interfere with his report.

Judgment affirmed.