Walker v. Schindel

Bartol, C. J.,

delivered the opinion of the Court.

This is an. action of trover brought by the appellee against the appellant, to recover damages for the illegal conversion by the latter of certain trade fixtures in a distillery, which are described in the declaration.

The evidence clearly shows, and it has not been denied by the appellant, that the fixtures in question were purchased by the appellee, and put into the building by him as his property, under a contract with George E. Hammerslay, the owner of the building, with whom he had formed a copartnership for the purpose - of carrying on the distillery; by which contract it was expressly stipulated that the fixtures in question were to be and remain the separate and individual property of the appellee. Nor is it denied that these facts were known to Ranney W. Hunter,' the mortgagee of Hammerslay, at the time he accepted the mortgage, and also to the appellant when he purchased the mortgaged property, and accepted the deed from Hammerslay of his interest therein. These .admissions by the appellant dispense with the necessity *365 of considering several of the appellant’s exceptions to the testimony offered by the appellee, for the purpose of proving the facts above enumerated.

Tiie prayer of the appellee granted by the Circuit Court, which has been omitted from the record, lias been supplied by agreement, and is as follows;

“The plaintiff prays the Court to instruct the jury, that if they find from the evidence, that the plaintiff and Hammerslay entered into copartnership, for the purpose of distilling whiskey, and that the plaintiff purchased with his own funds, the distilling apparatus sued for in this case, and that both before, and at the time they entered into said copartnership they agreed amongst themselves that the said distilling apparatus, thus furnished and paid for by the plaintiff, should remain and be his separate and individual property, and that it was -so understood and recognized by them, after they had formed the said copartnership; and further find that R. W. Hunter, both before, and at the time he took the mortgage read in evidence, from Hammerslay,' was informed, and knew that the plaintiff had purchased the said apparatus, and that the same was his individual property; and further find that the defendant, before he purchased the said mortgaged property, and also before the said sale was finally ratified, and before he received the deed from Hammerslay which was read in evidence, was informed and knew that the said apparatus was the property of the plaintiff; and further find that the plaintiff made a demand of the defendant for the said apparatus, and the defendant refused to lot the plaintiff have the same, but used it, and claimed it as his own property, then the plaintiff is entitled to recover, and the measure of damage is the value of the articles constituting the said apparatus set forth in the declaration, as found from the evidence.”

The testimony shows that the building in which the fixtures were placed, was originally a mill for grinding *366 grain, and that certain alterations were made in its interior, for the purpose of adapting it to the business of a distillery. The Mash-tub and three Fermenting tanks were constructed within the building, and were too large to be removed from it in their entirety. The former was placed in the third story', and set into the floor, down upon the joists, so as to make it steady, the floor having been cut away for that purpose; the mash contained therein, was stirred by a rake fastened to the roof or ceiling. The three fermenting tanks were placed on trestle work, or horses, on the second floor and passed up through the third floor through apertures cut therein, extending-feet above the level of the third floor. All the articles mentioned in the declaration are essential to the business of distilling, and are connected with one another by means of pipes and troughs, so as to constitute one complete apparatus for distilling.

At the trial below the appellant offered three prayers, which were refused, and he now assigns for error the granting of the appellee’s prayer, the rejection of the three prayers offered by himself, and he also claims a reversal of the judgment for an alleged error in overruling his objection to. certain evidence offered by the appellee.

The appellant’s prayers will first be considered.

'1st. His first prayer isvbased ujdou the construction of the agreement or articles of copartnership, under which, the prayer asserts, that the chattels or fixtures in question became partnership property. The agreement stipulates that Schindel, the appellee, contracted to “furnish the stills, boilers, fermenting and mash-tubs, and the grain and other necessary appliances in the mill connected with the business, and the hogs in the pen,” and Hammerslay agreed “to furnish the mill with the requisite machinery for grinding the grain and other work.”

*367 This agreement according to its true construction does not import either that the mill and machinery furnished by Hammorslay for the use of the partnership, or the distilling apparatus furnished by the appellee for the same purpose became partnership property. The parol evidence shows, as we have said, that the apparatus furnished by the appellee was to be and remain his sepa,rate, individual property.

There can be no doubt that the parol testimony offered to prove that agreement was admissible under the decisions of McCreery, vs. McCreery, 5 G. & J., 221 ; Bladen vs. Wells, 30 Md., 583 ; Creamer vs. Stephenson, 15 Md., 221 , and Basshor vs. Forbes, 36 Md., 154 . Other cases might be cited in support of the proposition “that proof of any collateral parol agreement, or independent fact, which does not interfere with the. terms of the written contract, though it may relate to the same subject-matter is admissible.” In this case the written agreement provides that the property in question shall be furnished by the appellee for the use of the firm; but is silent with regard to the ownership or right of property therein. The parol evidence on this subject does not contradict the writing, but merely proves a distinct collateral fact not inconsistent with the writing. There was no error in rejecting the appellant’s first prayer.

2nd. The second prayer of the appellant asserts that notwithstanding the parol agreement to the contrary, the distilling apparatus in question became and was a part of the freehold, by reason of the manner in which certain parts of it were annexed to the building, and because the mash-tub and three fermenting tanks had been constructed within the mill, and were too large to be removed from it in their entirety, and because these articles and the others mentioned in the declaration, were connected together and constituted a complete apparatus essential to the business of distilling, and because the appellant purchased *368 the mortgaged property for the purpose of carrying on a distillery therein, and this fact was known to the appellee, therefore the plaintiff was not entitled to recover. The last mentioned fact, that the appellant purchased the mill property with the intention of carrying on a distillery therein is wholly immaterial, and in no manner affects the appellee’s rights. The point of the prayer appears to be that under the facts therein enumerated, the distilling apparattis became a part of the realty, notwithstanding, the parol agreement between the parties. The prayer was properly rejected.

It is well settled that the rule of the common law by which, “whatever is affixed, or annexed to the soil or freehold becomes a part of it, and cannot be removed except by him who is entitled to the inheritance,” may be modified or changed .by the agreement of the parties express or implied. And where, as in this case, there was an express agreement that the articles, or fixtures, so annexed should remain the property of the party by whom they were purchased and placed in the building, there can be no doubt or question that the agreement is valid, and that the articles will be treated as personalty. Many cases might be cited in support of this proposition. We refer only to Curtis vs. Riddle, 7 Allen, 185 ; Taft vs. Stetson, 117 Mass., 117 ; Sheldon vs. Edwards, 35 N. Y. R., 279; Tifft vs. Horton, 53 N. Y. R., 377, and The N. C. Railroad Co. vs. The Canton Co., 30 Md., 347 , and cases there cited.

In Tyler on- Fixtures, the author after citing many cases in which the above doctrine has .been maintained, and stating as a rule that “the general law governing fixtures may be changed by the express agreement of the parties,” adds, “It is true that agreements' cannot in all cases control; like other general rules this has its exceptions. The limitation to the rule is when the subject or mode of annexation is such as that the attributes of per *369 sonal property cannot be predicated of the thing in controversy, as when the property cannot be 'removed without practically destroying it, or when it, or part of it is essential to the support of that to which it is attached. With this exception, chattels may be affixed to the realty, and yet by the arrangement of the parties, may continue to retain the character of personalty.” Tyler on Fixtures, 146. In Ford vs. Cobb, 20 N. Y., 344 , the limitation upon the effect of such agreements imposed by the nature of the subject, and the mode of annexation is well expressed by Judge JDento in a well considered opinion.

The passage from Tyler above cited, was referred to by the appellant in his brief, and he insists that the present case falls within the exception stated by the author. But the second juayer does not state as part of its hypothesis, that the apparatus now in question, was so affixed to the building as to be necessary to its support, or that it could not be removed without injury to the building, or without being itself practically destroyed. Nor is there any evidence in the case to support such an hypothesis.

That some of the articles in dispute could' not be removed from the building, without being taken to pieces, does not affect the question of ownership, although that fact would necessarily have its influence in determining the measure of damages.

By the agreement of the parties, all the articles named in the declaration, remained personal property of the appellee, and the wrongful conversion thereof by the appellant to his own use, entitled the former to maintain the action of trover. Lor that purpose an actual severance was not required. Fivell on Fixtures, 436, and cases there cited. As there stated correctly by the author, “the thing in question being already personal property, actual severance and asportation are unnecessary in order to constitute a conversion, and the question as to whether or not there has been a conversion of the thing iri contro *370 versy, is to be determined by tbe general rules of law' applicable to that question.”

3rd. The third prayer of tbe appellant was similar to tbe second, and for tbe same reasons was also properly refused.

4th. The question of evidence presented by tbe appellant’s exceptions, arose upon bis motion to strike out tbe testimony of tbe witness Hammerslay. In tbe argument of tbis exception, tbe appellant’s counsel contends that tbe testimony with respect to tbe fraud alleged to bave been committed by the appellant and Hunter, in obtaining tbe deed from the witness, was irrelevant, and that it was error for tbe Circuit Court to refuse to strike it out. Tbe deed spoken of is not in tbe record. Tbe motion to strike out Hammerslay’s testimony, appears in two bills of exception; these are not numbered, and with respect to them, and several of tbe other bills of exception, it may be remarked that they are set out in a most confused and bungling way, so that it is very difficult, if not impossible, to understand tbe points or questions intended to be reserved.

It does not appear that tbe motion to strike out tbe testimony was confined or limited to that portion relating to tbe procurement of tbe deed from Hammerslay. Tbe whole testimony of the witness was objected to, and taken subject to exception; a part of it related to the notice given by tbe witness to the appellant, that tbe personal property now sued for belonged to tbe appellee.

Tbis portion of tbe testimony was clearly admissible, and as tbe motion to strike out, comprehended tbe whole testimony of the witness, it was not error to refuse tbe motion.

5th. We bave next to consider tbe prayer of tbe appellee which was granted, and which, tbe appellant contends, was erroneous in fixing tbe measure of damages to bq u the value of the articles constituting the said appa *371 ratus as found from the evidence.” Under this instruction, as we construe it, the jury were told to estimate the damages according to the value of the property as it existed in the building, constituting a complete apparatus. But the proof showed that some of the articles, owing to their size, and the manner in which they were constructed and placed in the building, could not be removed without being taken to pieces; and the several articles constituting the apparatus, would have to be taken apart. The whole had been placed in the building by the voluntary act of the appellee, and though they remained his property, it is clear that he could not have the right to possess them, except in the condition they would be in when severed. If he had instituted replevin to recover them, or if the appellant had permitted him to take them, he could possess them only as they would be when severed and removed from the building. It follows that the only measure of damages to which he is entitled, is the value of the articles when so severed, and the jury ought to have been so instructed. We refer to Ewell on Fixtures, 441, and the cases there cited.

(Decided 11th July, 1882.)

The appellee’s prayer was also erroneous in failing to state that the measure of damages was the value of the articles at the time of the conversion.

Judgment reversed, cmd new trial awarded.