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Rex Distributors v. Jensen & Mitchell Inc.

Decided: July 28, 1941.

REX DISTRIBUTORS, RESPONDENT,
v.
JENSEN & MITCHELL, INC., APPELLANT



On appeal from the District Court.

For the appellant, Sylvan S. Cohen.

For the respondent, Andrew O. Wittreich.

Before Justices Parker, Donges and Colie.

Parker

The opinion of the court was delivered by

PARKER, J. The case presents the curious situation of the sale, as a chattel, of a building owned by defendant-appellant, but standing on leased land of a third party not involved in this suit. Plaintiff bought the building from defendant, paid for it, and later sued for damages, claiming that the building had been represented to be in good condition but that in fact it had a leaky roof and that plaintiff was obliged to spend some $420 in repair and renewal of the roof, for which sum the District Court gave judgment. The defense was that there was no warranty express or implied; and that any agreement by defendant to repair the roof was without consideration.

The transactions relating to the sale were entirely in writing. The first is an agreement under seal dated December

16th, 1938, whereby appellants agree to sell the building and tenancy rights in the land to John Campanella (who testified that he was "a member of the Rex Distributors"). The agreement contains this significant language:

"Said building as erected is upon ground leased at the present time from a third party and said seller is not at this time, the owner of the fee therein. Said building is sold subject to its present condition and as is as to condition and title.

"This contract is entered into upon the knowledge of the Purchaser as to the value of the said building and not as to any other representation as to character, quality or condition."

This was followed by a bill of sale, dated January 6th, 1939, by defendant to plaintiff corporation, and obviously pursuant to the contract. In that bill of sale we find the following language: "Said building is sold subject to its present condition and as is as to condition and title.

"The Purchaser takes upon his own knowledge as to the value of said building and not as to any other representation as to ...


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