
    OSCAR DREISBACH, DEFENDANT IN ERROR, v. MARY ECKELKAMP, EXECUTRIX, PLAINTIFF IN ERROR.
    Submitted December 11, 1911
    Decided March 15, 1912.
    1. Where a ease is tried by the judge, a jury being waived, and his finding on the facts is excepted to, the exception will not be sustained if there was evidence supporting the finding.
    2. The rule that upon the sale of personal property the vendor impliedly warrants the title and that the subject of the sale is unencumbered does not apply where the vendee is aware of the encumbrance and it appears from the circumstances of the transaction that neither of the parties contemplated the conveyance of an unencumbered title.
    On error to the Hudson County Circuit Court.
    For the plaintiff in error, Charles L. Garrick.
    
    Por the defendant in error, John J. Fallon.
    
   The opinion of flip court was delivered hy

Treacy, J.

This was a ease tried by the court without a .jury, the jury having been dismissed by consent. Plaintiff below brought suit for the purchase price of an orchestrion which he claimed to have sold to one Bewig, of whose estate defendant below is the executrix. The errors assigned are— first, that the lower court refused to nohsuit at the close of plaintiff’s case upon the ground that there was no evidence from which a conclusion could be drawn as a matter of fact that there was a sale of the orchestrion, and also refused to enter judgment at the. close of the ease for the defendant on the same ground, and second, that the court refused to non-suit upon the ground that the orchestrion was sold under an implied warranty of title which was broken by the failure to remove a chattel mortgage, which was then an encumbrance upon it, and refused to enter judgment' for defendant for the same reason.

There was evidence in the case upon which a jury might have found that- a sale of the orchestrion to Bewig had taken place. The court therefore was justified in so finding.

The orchestrion was taken from Dreisbach’s saloon by Bewig, and while Dreisbach himself was not permitted to testify as to the transaction, because of Bewig’s death, am' other witness testified to a conversation between Dreisbach and Bewig in which the former demanded the price of the orchestrion, stating that he was about to go to Germany, and the latter said he could only'pay part of the price ihen, and suggested that the balance he allowed to stand until Dreisbach returned. This suggestion being refused Bewig said that lie would try to have the whole amount for Dreisbach before he sailed. There being evidence therefore upon which the court could find that there was a sale of the orchestrion tp Bewig, a finding to that effect will not be disturbed.

The rule that the existence of an outstanding encumbrance is a breach of the warranty of title which is implied upon a sale of chattels does not apply, because the evidence shows that Bewig knew at the time of the sale of the orchestrion that there was a chattel mortgage upon it.

Bewig was the collector for the brewery which held the mortgage. In a conversation with Dreisbach, which was testified to, he told him that if he (Bewig) couldn’t pay him the entire purchase-money he would have an allowance made on the brewery mortgage, and this was agreed to by Dreisbach.

The court found that neither of the parties contemplated the passing of an unencumbered title to the orchestrion.

The judgment of the court below will be affirmed.

For affirmance—The Chancellor, Ci-iiee Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Vroom, Cong-don, White, Treacy, JJ. 16.

For reversal—None.  