Red Diamond Clothing Co. v. Steidemann

X. LANDLORD AND TENANT: Removal of Property Installed by Tenant: Oral Agreement: Fixtures: Trade Fixtures. An oral agreement between a lessor and a lessee, that property installed in the demised premises shall belong to the lessee and may be removed on the expiration of the lease, is valid and may operate to convert what would otherwise be realty into a personal chattel for the.purpose of the case; but such an agreement gives the lessee a right to remove erections of a permanent character not peculiarly parcel of a trade plant only when they are installed by him during the term and can be dissevered without material injury to the reversion. 2. -: -: -: Fixtures: Trade Fixtures: Conversion by Landlord. Under an oral agreement between a lessor and a lessee that property installed by the lessee in a building, demised for manufacturing purposes should belong to him and that he should have the right to remove it on the ' expiration of the lease, a boiler, an engine, a steam, pump and a blow-off tank installed by him, which were parcel of his manufacturing plant and therefore “trade fixtures,” and which could be removed without substantial injury to the building, belonged to and were removable by him, and the refusal of the landlord ’ to allow him to remove them amounted to a conversion. S. -: -: -: Fixtures: Trade Fixtures: Conversion by Landlord. A heating plant and sprinkling apparatus installed by a lessee in a building devoted to manufacturing purposes, which were not parcel of his manufacturing plant and therefore not “trade fixtures,” and which were so installed in the building as to preclude their removal without substantial injury to it, were “fixtures,” and hence were not removable by the lessee, notwithstanding it had been agreed between him and the lessor that property installed in the building by him should belong to him and that he should have the right 'to re- . move it on the expiration of the lease. 4. FIXTURES: “Trade Fixtures:” What Are. A boiler, an engine, a steam pump and a blow-off tank installed by a tenant in a building and all parcel of a manufacturing plant there located, were “trade fixtures;” but a heating plant and sprinkr ling apparatus, installed by the tenant merely to furnish warmth to his workmen and protection against fire, respectively, were not “trade fixtures.” K. CONVERSION: Landlord and Tenant: Landlord’s Conversion of Removable Property: Measure of Damages. In an action by a tenant against a landlord for conversion of certain trade fixtures belonging to the tenant and removable by him from the demised premises on the expiration of the lease, the measure of damages was the value of the fixtures at the tíme and pláce of the conversion, not such value less the cost of removal. «. APPELLATE PRACTICE: Review: Refusal to Allow Interest: Necessity of Excepting. The appellate court will not review the refusal of the trial court to allow plaintiff interest on his recovery, unless such refusal is made a ground of complaint in the motion for a new trial filed by him. 7.LANDLORD AND TENANT: Removal of Property Installed by Tenant: Oral Agreement: Effect of Entering Into New Lease: Fixtures. The renewal of a lease without -stipulating concerning the removal of fixtures does not operate as an abandonment by the tenant of a then-existing right to remove trade fixtures which are removable without substantial injury to the freehold. 8. -: -: -: -: Term “Fixtures” Construed. A lease provided that, at its termination, the tenant should deliver possession of the premises to the lessor, “with all keys, locks, bolts, window fastenings, all fixtures, and window glass replaced, if broken, in as good order as the same are now.” Held, that the term “all fixtures,” construed with reference to the rule ejusdem generis, should be held to mean, conformably to its usual meaning, only such things as were parcel of the realty, and hence trade fixtures, which, by an agreement between the parties antedating the lease, the tenant was given the right to remove, and which could be removed without' injury to the reversion, were not affected by nor within it. 9. APPELLATE PRACTICE: Rules of Decision: Admission of Evidence: Harmless Error. Where it is obvious that, in making the award, a referee considered only competent and material evidence, the erroneous admission of evidence by him will be held to be innocuous, and will not work a reversal, in view of the provisions of sections 1850 and 2082, Revised Statutes 1909.

Appeal from St. Louis City Circuit Court. — Ron. Rugo Muench, Judge. (1) The declarations and statements of an agent (who himself in this case was also one of the joint owners of the property with the others for whom he is acting) are binding upon all jointly interested with him and for whom he is acting at the time as agent. Garnhart v. Finney, 40 Mo. 462; Brooks v. Jameson, 55 Mo. 505; Robinson v. Walton, 58 Mo. 380; Beards-lee v. Steinmesch, 38 Mo. 168. (2) A landlord’s refusal to permit a tenant to remove property which has been placed by the tenant upon demised premises, and which is removable in the circumstances, amounts to a conversion of the property in question. Neiswanger v. Squier, 73 Mo. 192; Bircher v. Parker, 43 Mo. 443. (3) After the term expires, the landlord may not appropriate the property of tenant where circumstances demonstrate no intent to surrender or abandon the property. The “circumstances” are found in the record history of the first suit between these parties (120 Mo. App. 519) the interviews and other actions of the parties. Finney v. City, 37 Mo. 177; Neiswanger v. Squier, 73 Mo. 198. (4) Property such as the sprinkling apparatus in this case, and similar ' articles in controversy here, were removable by the tenants both by mutual agreement with the landlords and by reason of their character. Articles which when installed are agreed between landlord and tenant to be removable may be so removed, whether meanwhile they be properly considered chattel property or part of the realty. Here, the most positive agreements and assurances as to their removability were made. Kuhlman v. Meier, 7 Mo. App. 263; Ferry Co. v. Railroad, 142 U. S. 415; Goodman v. Railroad, 45 Mo. 34. (5) The items of property in question here were agreed to be removable, and a sale by the first tenant was made to another tenant on the faith of representations by the landlords’ agent (himself also a joint landlord) that they were the property of the tenant. It would be inequitable to permit the landlords now to set up a different claim. There is an estoppel created by the facts against their claim of title, which, by the way, is not set up expressly in their answer which is a general denial. The facts in evidence'are a firm estoppel against their present argument. Garnhart v. Finney, 40 Mo. 462; Chouteau v. Goddin, 39 Mo. 229; Priestly v. Johnson, 67 Mo. 636. The question of removability of such property is determined by the intent of the parties (landlord and tenant) and when clearly expressed will be. enforced by the courts. Mrs. Steidemann had no idea of claiming this property till 1904. Graves v. Pierce, 53 Mo. 423; Cook v. McNeil, 49 Mo. App. 84; Brown v. Baldwin, 121 Mo. 126. If there is an agreement that tenant may remove the property, the fact that some injury to the freehold may be thereby caused is no objection. Kuhlmann v. Meier, 7 Mo. App. 263, 9 Mo. App. 595. Different rules apply in regard to removing such articles as between vendor and vendee, mortgagor and mortgagee and those applicable to landlord and tenant. The rules as to the latter are more liberal to the tenant. Rogers v. Crow, 40 Mo. 93; Fox v. Lynch, 64 Atl. 439. (6) The fact that the old lease ended, and a new agreement or renewal occurred, does not transfer title of tenant’s separate personalty to the landlord. The circumstance that the rent under second lease was $700 less than under the first is a clear index to the intent of the parties regarding ownership of the property in controversy. Keer v. Kingsbury, 39 Mich. 150; Finney v. City, 39 Mo. 177; Neiswanger v. Squier, 73 Mo. 192; Walker v. Seymour, 13 Mo. 590. The word “fixtures,” in the second lease, is to be interpreted by the circumstances and by applying the rules noscitur a sociis and ejusdem generis to ascertain what was the intent of the parties to the lease by that word. It was evidently used to mean minor articles like those in the context, and not those now in question. Cullen v. Butler, 5 M. & S. 461; McNichol v. Agency, 74 Mo. 463; Railroad v. Bank, 92 Ya. 496, 44 L. R. A. 458; Nesbitt v. Luskington, 4 T. R. 783. (7) The foregoing rules are decisive but they are reenforced by the nature of the items here in question, as obviously trade appurtenances of the factory, and a liberal rule as to removability applies to such trade articles as between landlord and tenant. Ferry Co. v. Railroad, 145 U. S. 415; Hines v. Ament, 43 Mo. 300; Hobson v. Gorringe, 1 Ck. 182. (8) The word “fixtures” in the last lease means only articles which are permanent parts of the realty. It is not a word which would divest title of the tenant to personal property on the premises and vest same in the landlord. Cubbins v. Ayres, 4 Lea (Tenn.), 359; Brown v. Baldwin, 121 Mo. 134; (9) The measure of damages for conversion of such property which was not in fact severed, but remained in place and was so appropriated by the landlord, is not the “junk” value thereof (as if it had been severed) but its value in its place and for the purposes of its legitimate use. Neiswanger v. Squier, 73 Mo. 192. (10) The general rule is applicable here that the damages for conversion are ascertained by the value as of the time and place of the conversion, not as of some other time or some imaginary place, as assumed in the finding herein as to damages, in the trial court. Neiswanger v. Squier, 73 Mo. 192 ; Skeen v. Co., 42 Mo. App. 158. (11) The claim in the petition for damages for conversion and appropriation of this property of plaintiff by the defendants is for $3500, far in excess of the finding of the learned referee and court below. Interest is a proper item of recovery to be allowed as part of the damages in such a case. The award, findings and judgment were inadequate in that particular. E. S. 1909, sec. 5430; Carson v. Smith, 133 Mo. 606. This statute makes erroneous the court’s ruling disallowing finding of referee for interest on the value of the property found to have been converted. • Lack v. Brecht, 166 Mo. 242; Watson v. Harman, 85 Mo. 442; Carson v. Smith, 133 Mo. 606. (1) The engine, boiler, blow-off tank, steam pump, pipes, radiators and other appliances which comprised the heating and power apparatus were all a part of the building as planned, put up and leased for manufacturing purposes. They were fixtures within the full legal meaning of that term. Goodin v. Association, 5 Mo. App. 293; Manufacturing Co. v. Carroll, 72 Mo. App. 315; Electric Supply Co. v. Electric L. & P. Co., 75 Mo. App. 622; Davis v. Mugan, 56 Mo. App. 311; Donnewald v. Eeal Estate Co., 44 Mo. App. 350; Thomas v. Davis, 76 Mo. 72; Cohen v. Kyler, 27 Mo. 122; Havens v. Eire Ins. Co., 123 Mo. 430;Maehine.Co. v. Brick & Quarry Co., 151 Mo. 501; Green v. Phillips, 26 Grat. (Va.) 752; Hart v. Sheldon, 34 Hun (N. Y.), 38; Friedley v. Gildings, 119 Fed. 438; Langdon v. Buchanan, 62 N. H. 657; Harlan v. Harlan, 15 Pa. 507; Field v. Bank, 148 111. 163; Deal v. Palmore, 72 N. C. 582 ;McEae v. Bank, 66 N. Y. 489; Bank v. Adams, 138 111. 483; Williams’ App., 16 Atl. (Pa.) 810; Pea v. Pea, 35 Ind. 387; Hutchinson v. Masterson, 46 Tex. 551; Potter v. Cromwell, 40 N. Y. 287; Wadligh v. Jamvrin, 41 N. H. 503; Bryan v. Lawrence, 50 N. C. 337; Bank v. Emerson, 15 Mass. 159; Oves v. Oglesby, 7 Watts (Pa.), 106; Dispatch. .Line v. Belamy Mfg. Co., 12 N. H. 205; Lophan v. Norton, 71 Me. 83; Tóeles v. Winton, 63 Conn. 440; Iiorne v. Smith, 105 N. C. 322; Fryatt v. Salivan Co., 5 Hill (N. Y.), 116; Sands v. Pfeiffer, 10 Cal. 260; Winslow v. Merchants Ins. Co., 4 Met. (Mass.) 306; Harkness v. Sears, 26 Ala. 493; Gary v. Burguieres, 12 La. Ann. 227; McRae v. Bank, 66 N. Y.’490; Tabor v. Robinson, 36 Barb. 485; Reynolds v. Ashby & Son, Vol. 73, Law Journal, 1904 Reports, King’s Bench Division, p. 946.. (-2) The Red Diamond Clothing Company as assignee of the lease given by defendants, Mrs. Steidemann and Mrs. Zacher, and .the deceased, Julius Steidemann, to the Wright & Green Manufacturing Company in 1899 took no greater rights than were held by the latter company. And the Wright & Green Manufacturing Company having taken that new lease without reserving any right to the articles comprising the heating and power plant except the right to use them as part of the leased premises lost all right to remove them at the expiration of the new lease, particularly since by the new lease they also expressly covenanted to surrender all fixtures to the lessors at the end of the term. 2 Tiffany on Landlord and Tenant, 1593-1594g; Williams v. Lane, 62 Mo. App. 66; Real Estate Co. v. Schuchman C-o., 103 Mo. App. 24; Langham v. Ross, 45 N. Y. 792; Davis v. Moss, 38 Pa. St. .346; Donnewald v. Real Estate Co., 44 Mo. App. 350. (3) The' admission by the referee of the irrelevant and incompetent testimony as bearing on the value of the property at various times in its history was error and its admission was prejudicial to the defendants. Street Railway v. Walsh, 197 Mo. 392. Statement. — These are cross-appeals. The suit is in conversion for the value of a lot of fixtures. The finding and judgment were for plaintiff and defendants prosecute an appeal therefrom on the theory that the property found to have been converted belonged to them because of annexation to the freehold; while plaintiff prosecutes an appeal from the same judgment for the reason it is dissatisfied with the amount of the recovery. The case was referred by the circuit court to Charles P. Williams, Esquire, a member of the bar of the city of St. Louis, who, after having heard the evidence, in due time reported his findings of fact and conclusions of law thereon. The referee’s report reveals a careful and thoughtful consideration of the case and sets out .the facts and conclusions so clearly as to warrant us in copying it in full. Por a complete statement of the case, we set forth the referee’s report as follows: “In May, 1889, E. BE. Kortkamp, Julius Steidemann, Mary A. Steidemann, O. H. Kortkamp, Anna Kortkamp, Matilda Giessler, William J. Giessler, Emilia Zacher and August Zacher owned a lot of ground in city block 168 in the city of St. Louis, containing a front of forty-seven feet on the west line of Eighth street by a depth westwardly of 132 feet, six inches,- bounded on the north by a line seventy-one feet, six inches distant' from the south line of Franklin avenue. This 47-foot lot was made up of two parcels of ground which may be designated as the Kortkamp parcel and the Steidemann parcel. “On the day aforesaid all the foregoing parties joined in executing a lease of the aforesaid forty-seven feet to the Milius Boot & Shoe Manufacturing Company, the lessors further agreeing in said lease to erect a factory building covering the whole forty-seven feet for the use of the lessee. The lease was for a term of ten years with an annual rental of $2200, payable in monthly installmnts, and the lessee covenanted to pay the taxes, which amounted to some four hundred dollars per annum. There was apparently some arrangement as to the rental which caused it to be fixed with relation to the estimated cost of the building. Shortly before the building was completed, Mr. Milius, the president of the lessee company, had a talk with Mr. Julius Steidemann, one of the owners, in which Mr. Steidemann stated that he was acting as the agent of the parties interested in the building; that those parties would object to putting up anything in the building except the building proper and the elevators ; and, as long as the lessee company had its own boiler, engine and heating plant at its former place of manufacture, that, if the lessee desired, it could move its own plant to the new premises, and as the owners did not desire to go to this expense, they would not charge it as a part of the construction. In accordance with this arrangement, the lessee company installed in the building its boiler, engine, heating apparatus, steam pump and blow-off tank. The blow-off tank was used to receive the waste steam from the engine and boiler and was required to be used in connection therewith by the city ordinance. The steam pump appears to have been used in connection with the boiler and with the water supply in the sprinkling tank and pipes. “Some time later, the lessee brought up the question of installing a sprinkling equipment in the building and discussed the matter with Mr. Julius Steidem^inn. Mr. Steidemann objected to putting the sprinkling equipment in' and Mr. Milius then inquired whether he would be willing to contribute any portion toward the cost of it. Mr. Steidemann at first objected and said he did not care to go to the expense. Mr. Milius then argued with him on the proposition of insurance, but Steidemann stated that he was insured in a mutual company anyway. He then stated that if the balance of the folks did not object he would see them and might possibly get some contribution toward it for the lessee. In a later interview between the parties, Steidemann agreed to pay $250 toward the expense of installing the sprinkling apparatus, stating that he didn’t care about it and that at any time the lessee desired to move it or any part of the plant they conld do so. There was no substantial evidence that this $250 was contributed to by any of the other lessors except Julius Steidemann. Thereafter the sprinkling plant was put into the building by the lessee company. “About a year and a half before the termination of the tenancy under the first lease, Mr. Milius endeavored to sell the articles in controversy to Mr. Julius Steidemann, stating to him that they would be worth a great deal more to him or to any new tenant that was to occupy the building, but Steidemann refused to buy them, stating that he didn’t care about investing any money in them, that the lessee could take them or leave them just as lie pleased. “A few months after the above-detailed occurrence, the Milius Boot & Shoe Manufacturing Company sold the articles in controversy to the Wright & Greene Manufacturing Company for the sum of $800.' Prior to this sale, Mr. Greene of the Wright & Greene Manufacturing Company came to see Mr. Julius Steidemann about the purchase of the plant. Mr. Steidemann stated to Mr. Greene that they had no title to the property in the building, to the machinery, etc., and that the Wright & Greene Company could buy this property without any danger from the owners. Acting upon these statements, Wright & Greene bought the property in controversy. “About the same time, Wright & Greene bought the unexpired portion of the Milius lease, and secured a new lease of the premises from Mary A. Steidemann, Emilia Zacher and Julius Steidemann, the then owners, which lease is in word and figures as follows, to-wit: “ ‘This lease, made and entered into this 31st day of July, 1899, by and between Mary A. Steidemann, Emilia Zacher and Julius Steidemann, hereinafter referred to as the lessors, and the Wright & Greene Manufacturing Company, hereinafter referred to as lessee: the market value of the removable property, when removed from the building. ‘ ‘ The cost of removal must be taken into consideration. Otherwise, -it seemed to me we should abandon the doctrine of avoidable damages. Presumably the claimants should have bought other second-hand property of equal value at the market price. “V. “I understand the rule of law to be that all prior and contemporaneous bargainings and arrangements are considered as merged in the written lease. Where the language is ambiguous or doubtful, resort may be had to all surrounding circumstances. If I were clear that, under the facts and circumstances, the engine, boiler, pump and blow-off tank constituted fixtures, then, under the language of the second lease, as well as under the general rules of law, I should necessarily be compelled to hold that there was an abandonment and surrender of them to the landlords. “The difficulty is, that what constitutes a fixture is largely a question of fact. This question of fact depends upon the nature and situation of the property and the intention of the parties. Upon concrete cases the decisions are in hopeless and irreconcilable conflict. I have devoted much time to their consideration, going far beyond the briefs. of counsel. “I agree that parol understanding between the parties, where it amounts to contract or estoppel, can change personalty to fixtures or fixtures to personalty. I do not find that Julius Steidemann was ever actually or impliedly authorized by his statements to bargain away the right of the other co-owners, and waive for them their right to claim property annexed to the realty. Julius Stediemann, not being proven to have such power to bind his co-owners, could not by his sole act, as for himself alone, convert the nature of this property. He could no more do it than one joint owner' can grant an easement in the common land. “Futhermore, Julius Steidemann never went far enough to say, that notwithstanding the terms of any lease which you may make and notwithstanding you may leave this property until your current term is ended, you may-still remove it. “For these reasons I am of the opinion that the heating pipes and the sprinkling plant have not been converted by agreement of the parties into pure personalty. “I find against the defendants, Emilia Zacher and Mary A. Steidemann, in the sum of $377.50, as for a conversion of the boiler, engine, pump and blow-off tank on the 31st day of December, 1904, with interest from that date. I find in favor of the personal representatives of Julius Steidemann.” Both plaintiff and defendants filed exceptions to the referee’s report, but these were in the main overruled by the court. However, one of defendants’ exceptions was sustained, in that the court denied plaintiff interest on the amount of the recovery recommended by the referee, for the reason interest thereon was not prayed for in terms in the petition. After rejecting the recommendation as to such interest, the court entered judgment for $377.50, in accordance with the referee’s recommendation, against defendants Emilia Zacher and Mary A. Steidemann, and gave judgment for the estate of Julius Steidemann, deceased.