
    Moritz Cohn, App’lt, v. Edward H. Ammidown et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Sale—Title—Warranty.
    An affirmation of title is implied when one sells chattels in his possession, unless the facts and circumstances of the sale show that he did not intend to assert title in himself, but simply to transfer such interest or title as he has.
    2. Same—Chattel mortgage.
    Defendants, as trustees, held a chattel mortgage upon the machinery, etc., of a manufacturing corporation, and, under a power of sale therein sold the chattels at public auction in a single lot to plaintiff. The latter, being unable to obtain possession of certain articles, sought to recover from the defendants individually the value thereof, alleging that they had asserted title to the property, when in.fact they were without title or power to sell. Held, that defendants did not assume to warrant the title, and the circumstances were such that.a personal warranty could not be implied as against them.
    - Appeal from a judgment of- the general term of the superior court of the city of New York, dismissing the complaint on the, merits," entered on aft order overruling exceptions heard in the first instance at general term.
    
      A. J. Dittenhoefer, for app’lt'; A. H. Ammidown, for resp’ts;
    
      
       Affirming 1 N. Y. State Rep., 781
    
   Follett, Oh. J.

December 1, 1877, a manufacturing corporation mortgaged to the defendants, as trustees, all of its machinery, equipments and property, except stock manufactured, or in process of manufacture, and unmanufactured material, to secure the payment, in ten years from date, of 250 bonds of $500 each, with semi-annual interest. The mortgage contained a power of sale to be executed by the trustees in case the mortgagor failed to pay when due the principal or interest of the debt secured. The mortgagor having made default in the payment of the interest, the trustees sold,- January 17, 1879, at public auction, all of the mortgaged chattels in a single lot to the plaintiff for $30,000. The sale took place at No. 541 West Twenty-third street (which was occupied by the mortgagor under a lease from Gardiner Colby) and was made strictly in accordance with the power contained in the mortgage. Among the articles sold were a steam engine, boiler, shafts, pipes, two pumps-and connections, which the plaintiff alleges the defendants had no title to or power to sell. It is shown that the lessor of No. 541 prevented the plaintiff from removing the engine and its connections from the premises, but why, or by what title he claimed to withhold the property from the plaintiff is not shown. October 23,1882, this action was begun to recover from the defendants, individually, the value of the engine, boiler, etc., the plaintiff alleging that the defendants when the property was sold asserted that they, as trustees, had title to and power to sell and deliver the property, but that in truth and in fact they were without title or power to sell. It further appears that in January, 1880, this plaintiff brought an action against the executor of the lessor of No. 541, for converting an engine, connections and certain other property, and that the defendant interposed simply a general denial. On the trial the jury assessed the value of (1) “ The boiler, engine, pump and appurtenances, at $900.” (2) “ Of the elevator, trap door and appurtenances, at $400.” (3) “Of the pipes and all other property, at $500.” Whereupon the court directed a verdict for the plaintiff for $900, the value of the property claimed except the boiler, engine, pump and appurtenances. By what right the defendant claimed the engine and boiler, or why the plaintiff failed to recover does not appear. For aught that appears, it may have been on the ground that the defendant never claimed title to the property. The plaintiff failed to show, as alleged, that the defendants made any representations in regard to the title, and also failed to show that the property was withheld from him by virtue of a title paramount.

An affirmation of title is implied when one sells chattels in his possession unless the facts and circumstances of the sale show that he did not intend to assert title or ownership, in,himself, but simply to transfer such interest or title as he has. In this case it very clearly appears that these defendants did not assume to .war j rant the title, and the circumstances were such that a personal warranty of title cannot be implied as against them.

The judgment should be affirmed, with costs.

All concur, except Haight., J., not sitting.  