Doerfler, J.
Friedman’s, in its answer, denied that the plaintiff had complied with his contract, and alleged that the failure of the plaintiff to so comply resulted in damages in an amount in excess of plaintiff’s claim, and prayed that the [134]*134damages be set off on the amount awarded the plaintiff. Moran’s and the Building Company took a similar position.
That there were a number of long delays in the installation of the elevator must be admitted. However, immediately after entering into the contract the plaintiff showed laudable dispatch in furnishing the elevator. While the obligation to supply the hatchway, the penthouse, the pit, and the power rested upon Friedman’s, it appears that the latter did not move with reasonable dispatch to facilitate the installation at an early date. The plaintiff had substantially performed his contract in furnishing the elevator and installing it early in August, 1922. The elevator could not then be tested because no power had been furnished. While waiting for power Friedman’s let the- contract for the plastering of the hatchway, and while this work was being performed the plastering contractor, without the consent of the plaintiff, used the top of the elevator as a moving platform to facilitate him in the doing of his work.
If the plaintiff’s testimony be accepted, the plastering was done before the 25th day of September, when the first real practical test was made of the elevator. While it was evident that an unworkmanlike job was performed by the plastering contractor and his employees, in that they permitted soft mortar to- be splashed up against the guide rails and in and over the elevator, the motor, and the other mechanical parts, no one suspected that any of this mortar had found its way into -the safety shoes or into the motor in such a way as to cause an obstruction to the proper operation of the elevator. The state elevator inspector was present at the first test, observed the running of the elevator, and assumed that the defects were either inherent in the mechanism or in an improper installation. At that time the inspector also directed certain changes in the hatchway and in the angle-irons, which duty devolved upon Friedman’s. The plaintiff and his experts apparently devoted every effort to discover the cause of the trouble and made a number of [135]*135changes and adjustments, and concluded in the beginning of December that the defects had been remedied.
Owing to the inability to obtain the services of a state inspector, the second test was not made until the 29th of January, 1923. The tests then made were also unsatisfactory and the installation was not approved. The principal defect at that inspection also consisted in the failure of the safety device to operate properly.
Renewed efforts were then made to discover the defects and further adjustments and changes were made, and when the safety device was again tested by a drop test on April 6, 1923, its utter failure to operate was manifested by the elevator dropping to the bottom of the pit with the entire load thereon. The real cause of the trouble was then for the first time discovered. It was then ascertained that mortar had found its way into the safety shoes, the motor gear case, and other parts of the machinery, and it was the opinion of the experts that this condition fully accounted for the defective operation of the appliance.
In the last test of the elevator referred to, the appliance was practically ruined and wrecked. A new elevator was thereupon furnished by the manufacturer, was installed and tested, and gave ample satisfaction, so that it was approved by the representatives of the industrial commission. During the greater portion of the time from September, 1922, until April, 1923, the elevator was used by Friedman’s notwithstanding the defective condition of the safety device.
It is argued by appellants’ counsel that the presence of mortar in the motor and in the safety shoes should have been discovered long before April, 1923, and that plaintiff’s failure to make such discovery manifests negligence and constitutes a substantial breach of his contract. However, it must be borne in mind that this elevator was furnished by the plaintiff for the defendant Friedman’s; that it was installed in its building, over which it had supervision and control; that it owed the duty to the plaintiff to desist from [136]*136doing any positive act which would have a tendency to interfere with plaintiff’s performance of his contract, and to exercise such care and supervision over this elevator as would prevent any interference or obstruction on the part of others, and particularly its own agents or contractors. No adequate cause at any time was ascertained why the elevator did not properly operate, excepting the presence of the mortar, and for this Friedman’s was responsible. Plaintiff, his-experts, and the inspectors were firmly of the opinion that the defect consisted in the mechanism of the elevator itself, and therefore every conceivable mechanical test and change was tried in order to cause the elevator to function properly.
Under these circumstances it would appear to us that the trial court properly held that the plaintiff did not breach his contract, and that the failure of the elevator to operate properly was due to the negligent acts of the plastering contractor employed by Friedman’s. It would certainly be an anomaly in the law to allow damages to Friedman’s when, as found by the court, these damages ensued as the result of its own acts.
But counsel for the appellants take the position that the preponderance of the evidence shows that the first test of the elevator on September 25, 1922, was made before the hatchway had been plastered; that the safety device did not then properly operate; and that therefore the failure of the elevator to withstand a proper test could be due solely to inherent defects in the elevator itself and in its mechanical parts.
It is true that one of the experts of the plaintiff and a number of witnesses produced by the defendants testified that when the first test was made the plastering had not yet been done. This is contradicted, however, by the plaintiff’s testimony and by the physical fact, which was established beyond controversy, that the presence of mortar in the motor and in 'the safety shoes fully accounted for the defective operation, and that no other adequate cause was advanced. The number of witnesses testifying to a given fact is not necessarily decisive in determining such fact. The actual [137]*137physical situation when established, and particularly when it fully accounts for a trouble like the one herein involved, may be decisive in the establishment of a fact, notwithstanding that numerous other witnesses may testify otherwise. A careful reading of the evidence in this» case convinces us that the trial court was right in its deductions and conclusions, and its findings in that behalf, therefore, cannot be disturbed.
Appellants’ counsel further argue that in the event that it should be held that Friedman’s is not entitled to damages against the plaintiff, that nevertheless the appellants are entitled to judgment against Friedman’s and Bentley P. Neff, trustee, for any amount they may be required to pay to free the leasehold interest from the plaintiff’s lien. Upon the sale of the assets of Friedman’s,
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Doerfler, J.
Friedman’s, in its answer, denied that the plaintiff had complied with his contract, and alleged that the failure of the plaintiff to so comply resulted in damages in an amount in excess of plaintiff’s claim, and prayed that the [134]*134damages be set off on the amount awarded the plaintiff. Moran’s and the Building Company took a similar position.
That there were a number of long delays in the installation of the elevator must be admitted. However, immediately after entering into the contract the plaintiff showed laudable dispatch in furnishing the elevator. While the obligation to supply the hatchway, the penthouse, the pit, and the power rested upon Friedman’s, it appears that the latter did not move with reasonable dispatch to facilitate the installation at an early date. The plaintiff had substantially performed his contract in furnishing the elevator and installing it early in August, 1922. The elevator could not then be tested because no power had been furnished. While waiting for power Friedman’s let the- contract for the plastering of the hatchway, and while this work was being performed the plastering contractor, without the consent of the plaintiff, used the top of the elevator as a moving platform to facilitate him in the doing of his work.
If the plaintiff’s testimony be accepted, the plastering was done before the 25th day of September, when the first real practical test was made of the elevator. While it was evident that an unworkmanlike job was performed by the plastering contractor and his employees, in that they permitted soft mortar to- be splashed up against the guide rails and in and over the elevator, the motor, and the other mechanical parts, no one suspected that any of this mortar had found its way into -the safety shoes or into the motor in such a way as to cause an obstruction to the proper operation of the elevator. The state elevator inspector was present at the first test, observed the running of the elevator, and assumed that the defects were either inherent in the mechanism or in an improper installation. At that time the inspector also directed certain changes in the hatchway and in the angle-irons, which duty devolved upon Friedman’s. The plaintiff and his experts apparently devoted every effort to discover the cause of the trouble and made a number of [135]*135changes and adjustments, and concluded in the beginning of December that the defects had been remedied.
Owing to the inability to obtain the services of a state inspector, the second test was not made until the 29th of January, 1923. The tests then made were also unsatisfactory and the installation was not approved. The principal defect at that inspection also consisted in the failure of the safety device to operate properly.
Renewed efforts were then made to discover the defects and further adjustments and changes were made, and when the safety device was again tested by a drop test on April 6, 1923, its utter failure to operate was manifested by the elevator dropping to the bottom of the pit with the entire load thereon. The real cause of the trouble was then for the first time discovered. It was then ascertained that mortar had found its way into the safety shoes, the motor gear case, and other parts of the machinery, and it was the opinion of the experts that this condition fully accounted for the defective operation of the appliance.
In the last test of the elevator referred to, the appliance was practically ruined and wrecked. A new elevator was thereupon furnished by the manufacturer, was installed and tested, and gave ample satisfaction, so that it was approved by the representatives of the industrial commission. During the greater portion of the time from September, 1922, until April, 1923, the elevator was used by Friedman’s notwithstanding the defective condition of the safety device.
It is argued by appellants’ counsel that the presence of mortar in the motor and in the safety shoes should have been discovered long before April, 1923, and that plaintiff’s failure to make such discovery manifests negligence and constitutes a substantial breach of his contract. However, it must be borne in mind that this elevator was furnished by the plaintiff for the defendant Friedman’s; that it was installed in its building, over which it had supervision and control; that it owed the duty to the plaintiff to desist from [136]*136doing any positive act which would have a tendency to interfere with plaintiff’s performance of his contract, and to exercise such care and supervision over this elevator as would prevent any interference or obstruction on the part of others, and particularly its own agents or contractors. No adequate cause at any time was ascertained why the elevator did not properly operate, excepting the presence of the mortar, and for this Friedman’s was responsible. Plaintiff, his-experts, and the inspectors were firmly of the opinion that the defect consisted in the mechanism of the elevator itself, and therefore every conceivable mechanical test and change was tried in order to cause the elevator to function properly.
Under these circumstances it would appear to us that the trial court properly held that the plaintiff did not breach his contract, and that the failure of the elevator to operate properly was due to the negligent acts of the plastering contractor employed by Friedman’s. It would certainly be an anomaly in the law to allow damages to Friedman’s when, as found by the court, these damages ensued as the result of its own acts.
But counsel for the appellants take the position that the preponderance of the evidence shows that the first test of the elevator on September 25, 1922, was made before the hatchway had been plastered; that the safety device did not then properly operate; and that therefore the failure of the elevator to withstand a proper test could be due solely to inherent defects in the elevator itself and in its mechanical parts.
It is true that one of the experts of the plaintiff and a number of witnesses produced by the defendants testified that when the first test was made the plastering had not yet been done. This is contradicted, however, by the plaintiff’s testimony and by the physical fact, which was established beyond controversy, that the presence of mortar in the motor and in 'the safety shoes fully accounted for the defective operation, and that no other adequate cause was advanced. The number of witnesses testifying to a given fact is not necessarily decisive in determining such fact. The actual [137]*137physical situation when established, and particularly when it fully accounts for a trouble like the one herein involved, may be decisive in the establishment of a fact, notwithstanding that numerous other witnesses may testify otherwise. A careful reading of the evidence in this» case convinces us that the trial court was right in its deductions and conclusions, and its findings in that behalf, therefore, cannot be disturbed.
Appellants’ counsel further argue that in the event that it should be held that Friedman’s is not entitled to damages against the plaintiff, that nevertheless the appellants are entitled to judgment against Friedman’s and Bentley P. Neff, trustee, for any amount they may be required to pay to free the leasehold interest from the plaintiff’s lien. Upon the sale of the assets of Friedman’s, including the lease, Cross, the trustee of the insolvent estate, assigned and transferred to Moran’s all the right, title, and interest that Friedman’s had in such assets and in its leasehold. In the document delivered by the trustee to Moran’s the trustee warranted only that he was duly authorized to sell such assets and leasehold. There was no warranty of any title. In 5 Corp. Jur. 1223, it is said: “The purchaser from an assignee for the benefit of creditors obtains the title of the original owner through the power in trust vested in the assignee, subject to any liens against the property which are not discharged by the sale.” In 2 Ruling Case Law, p. 710, § 61, it is said: “The right to sell by an assignee does not include the right to warrant the title conferred by such sale.” The law as thus laid down by these authorities finds ample support in the decisions referred to in the notes to these quotations. Therefore Cross, the trustee, merely sold the right, title, and interest of his assignor, and .the purchaser under the instrument of conveyance took only such right, title, and interest, subject to the plaintiff’s claim for lien thereon.
The lease of the Building Company and the Telegram Company to Friedman’s dated the 12th day of November,’ [138]*1381921, contains a provision that the lessee “will not make or permit any alteration of or upon any part of said demised premises . . . except by written consent of lessors first had and obtained, and if any alterations are consented to, then all alterations, of any- form, kind, nature, or description, made to said demised premises, shall be wholly paid for by said lessee.” The closing paragraph of the lease also provides that “All-the parties to- this lease agree that 'the covenants and agreements herein contained shall be binding upon, apply, and inure to their respective successors and assigns.” So that we must assume that when Moran’s took an assignment of the leasehold interest of Friedman’s from the trustee, it took it with knowledge of all of the provisions of the lease, and in accepting such assignment it consented to and undertook to perform the various covenants and agreements of such lease; and one of the agreements so undertaken yvas the one that it would pay for any alterations made upon the leased premises. As between Friedman’s and Moran’s, therefore, the latter became primarily liable and the former secondarily. So that the legal effect of the transfer to Moran’s by Cross, the trustee, resulted not only in the transfer of the right, title, and interest of Friedman’s in the leasehold, but also in an assumption on the part of M.oran’s of the obligation to pay for the installation of the elevator.
It is true that a situation is here presented which will result in Moran’s being obliged to- pay the lien judgment in order that it may be protected from the title which third persons may obtain on the foreclosure sale, or that the Building Company will be obliged to- pay such lien judgment, under its agreement with Moran’s under the new lease between it and Moran’s. If Moran’s pays such judgment it is complying with an obligation which it has assumed; if the Building Company pays, it will be pursuant to its voluntary obligation assumed in its lease with Moran’s, to which lease neither Friedman’s nor the trustee was a party.
[139]*139It follows, therefore, that the learned circuit judge was correct in holding that neither Moran’s nor the Building Company has any claim whatsoever against Friedman’s. The lien was filed in due time, the action of foreclosure was begun within the time specified in the mechanics’ lien statutes, and the judgment follows strictly the provisions of such statutes, and cannot be disturbed.
By the Court. — The judgment of the lower court is affirmed.