MORRIS COHEN, INC.
v.
B & B DIAMOND CO.
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Morris Cohen, Inc. purchased office partitions from B & B Diamond Co., which had installed them on leased premises. When the lessor threatened to claim the partitions as fixtures under lease clauses requiring improvements to revert to the owner, Cohen sued for breach of warranty of title. The court held that a warranty of title to chattels is not breached merely because a third party might have a potential claim if the buyer remains in undisturbed possession.
A seller's express or implied warranty of title to chattels is not deemed broken as long as the real owner has not asserted title and the buyer remains in undisturbed possession. Since neither lessor claimed the partitions as fixtures and Cohen was not disturbed in possession, the warranty of title was not breached.
“an express or implied warranty of the title to chattels is not deemed broken for the purpose of an action by the buyer so long as the real owner has not asserted his title, and the buyer consequently has not been disturbed in his possession . . .”
Establishes the majority rule that a warranty of title to personal property requires actual assertion of title by a third party and disturbance of possession to constitute a breach.
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Join FLexlaw to unlock all legal intelligenceMorris Cohen, Inc. purchased office partitions from B & B Diamond Co., which erected them on premises leased by B & B from the Lamb Company. The Lamb …
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This cause came on before me after due notice upon defendant’s motion for summary judgment, and the court finding that there is no genuine issue as to any material fact herein, the motion is granted.
*52The pleadings, records, depositions and affidavits reflect that the plaintiff purchased certain office partitions from the defendant. These partitions were erected by the defendant on premises leased by the defendant from the Lamb Company.
The Lamb Company was sub-lessee of the premises under a master lease from the owner, Gamage. The lease from Gamage to the Lamb Company, as well as the sub-lease from the Lamb Company to the defendant, contained the usual clauses to the effect that any additions, alterations or improvements to the premises should become part of the realty and revert to the owner upon the expiration of the lease.
Plaintiff now seeks to recover the purchase price, relying upon want of title in the defendant — ¡because of possible claims of the lessors, Gamage or the Lamb Company, under the lease clauses above mentioned. The legal theory seems to be that the defendant corporation breached its warranty in the bill of sale when it stated it was the “lawful owner” and had “good right to sell.” There was no attempt to show that anyone had disturbed the possession of the plaintiff to the partitions — on the contrary it affirmatively appears in the record that neither the Lamb Company nor Gamage had asserted any claim thereto.
Since neither lessor claims the partitions as being fixtures, we are left with the legal question as to the right of a purchaser in undisturbed possession to question the title of the seller.
This court is persuaded by the majority view as stated in 46 Am. Jur., Sales, section 407 page 579 — “The majority view, which is similar to that applied in the case of a warranty of title to real estate or covenant for quiet enjoyment, is that an express or implied warranty of the title to chattels is not deemed broken for the purpose of an action by the buyer so long as the real owner has not asserted his title, and the buyer consequently has not been disturbed in his possession . . .”
There being no factual issues presented, summary judgment is hereby entered for the defendant and this cause shall stand dismissed with prejudice at plaintiff’s costs.