Perkins v. Whelan

116 Mass. 542, 1875 Mass. LEXIS 34

• Court: Massachusetts Supreme Judicial Court
• Decided: January 9, 1875
• Status: Published

Opinion

Morton, J.

The statute of limitations is a bar to this action. The plaintiff’s cause of action is founded upon the breach of the warranty of title implied in the sale of the horse by John Whelan to him. This breach occurred at the time of the sale, and the right to sue therefor then accrued. The case is analogous to an action for a breach of the covenants in a deed against incumbrances, where it is held that the covenant is broken as soon as the deed is delivered, and an action then accrues for such breach. Harrington v. Murphy, 109 Mass. 299, and cases cited.

We are not aware of any decision of the precise point of this case by this court; but in Grose v. Hennessey, 13 Allen, 389, it was held, that an action for a breach of the warranty of title in a chattel could be maintained by the buyer, although he had not been disturbed in his possession. This implies, and is consistent only with the rule, that the warranty is broken at the time of the sale and the cause of action then accrues. As this view is fatal to the plaintiff’s case, the other questions presented by the report become immaterial. Plaintiff nonsuit.