Christian v. Dripps, 28 Pa. 271

Christian v. Dripps

28 Pa. 271 | Pa. | 1857

The opinion of the court was delivered by

Knox, J.

A brief statement of the facts of this case is necessary to a proper understanding of the legal questions which are raised by the errors assigned.

On the 1st day of December, 1851, William Dripps by articles of agreement sold to Henry Bisbing and John P. Burn certain real estate, including a foundry and machine shop, for the sum of thirteen thousand dollars. In April, 1852, Bisbing & Burn took. possession of ■ the property, and as factors carried on the foundry and machine business. In June, 1853, Joseph Christian became a partner in the firm for the prosecution of the same business. At this time there was due to Dripps on the real estate about ten thousand dollars. The article of agreement which was entered into between Bisbing, Burn, and Christian, was not produced upon the trial; but in its absence the plaintiff gave in evidence an entry upon the firm books, made at the commencement of the partnership, by which it appeared that the real estate purchased from Dripps was credited to Bisbing & Burn, together with the stock on hand and the debts due to the firm, and they were charged with the unpaid purchase-money on the real estate and the debts which the firm owed. Joseph Christian was credited with cash $1100, and amount of tools and stock put into the business by him $2000 — embracing, amongst other articles, three turning lathes, one planing machine, and three machine vices, which were put up in the machine shop.

In March, 1854, Bisbing left the firm, and the business was carried on by Burn & Christian until March, 1855. In February, 1855, Dripps, the owner of the legal title, commenced an action of ejectment against Burn & Christian, to recover the unpaid purchase-money; and in March, 1855, Christian detached from the building the lathes, and removed them, together with the planing machine and machine vices.

*277These articles were first attached by Dripps upon a writ issued by a justice of the peace, but were subsequently replevied as having been part of the realty. The lathes, vices, and planing machine were delivered by the sheriff to Dripps, the plaintiff in the replevin; but the machine vices and planing machine were returned to Christian.

The question in the court below was, whether the lathes, before severance, were real estate, and as such belonged to the owner of the legal title ? The defendant alleged:

1st. That the plaintiff was estopped from claiming the lathes in this action of replevin in consequence of his proceedings by attachment.

- 2d. That the lathes in question were not fixtures, even if they belonged to the owners of the freehold.

3d. That Christian had no interest in the real estate except as tenant, and therefore had the right to remove fixtures erected by him.

Upon the admission and rejection of evidence, and instructions given and refused to be given to the jury, sixteen errors are assigned.

It is not necessary, however, to give a separate examination to each assignment; for they are all included in the following questions :—

1. Did the court err in admitting the day-book of the firm of Burn, Bisbing & Christian ?

2. In refusing to charge that the plaintiff was estopped from claiming the lathes as fixtures, because he had previously attached them as personal.

3. In charging the jury, that' if the evidence was believed, Christian was part owner of the real estate; and that whether he was or not, when the lathes became the property of the firm, and were by the firm attached to the freehold, they became part of the freehold, and could not be severed by an individual member' of the firm, so as to affect the right of property in the owner of the legal title.

4. In overruling the defendant’s questions as to custom and damages, upon which his 15th and 16th errors are assigned.

1. The objection to the admission of the day-book was general, and cannot be sustained if the book was evidence for any purpose. That it was evidence for the purpose of showing the partnership, its terms, and that the lathes in question were sold by Christian to the firm, appears to be too plain to admit of denial. There was, therefore, no error in receiving the evidence. Whether there was error in the effect given to it, belongs to another-branch of the case.

2. The seizure by the constable of the lathes upon the attachment, can in nowise affect the question of property. Even if the *278constable acted under the direct instructions of the plaintiff, it would only tend to prove that the plaintiff was uncertain whether the lathes were real or personal property. A mistake in this respect would not prejudice his legal rights; for neither the principle of estoppel, nor the doctrine of election, applies to a case like the present. It would be a harsh rule that would take away a man’s property for error in judgment upon a legal question of so difficult solution as that which relates to the law of fixtures.

3. Were these lathes fixtures independent of the question of ownership of the real estate? Whether Christian had such a title to a part of the real estate as to prevent the statute of frauds from defeating it, is a question by no means free from difficulty. Be this as it may, there is no pretence for alleging that he was in possession as a tenant merely. It is plain, from the entry in the partnership book, that the real estate was treated as the joint property of the firm, and the possession of each member of the firm was in all respects like that of the other partners. All were in possession as owners, and none as tenants. They were neither paying rent to each other nor to any other person. So too the lathes were the property of the firm. Originally belonging to Christian, he had transferred them to the firm of which he was a member, and he had no more right to remove this particular property than he would have had, had it been purchased and put into the building after he became a partner. Under this state of facts, were these lathes fixtures ? Bid they constitute part of the real estate, the legal title of which was in the plaintiff? If so, then the severance, though it may have changed the character of the property, did not transfer the ownership: Roberts v. Dauphin Deposite Bank, 7 Harris 71.

The Court of Common Pleas instructed the jury, that if the evidence was believed, the lathes were attached to the freehold, and became part of the r'eal estate.

There was some contrariety in the evidence respecting the manner in which the lathes were put up in the machine shop. Mr. Bisbing, one of the partners, testified that the largest lathe stood on blocks, and that the lathe and blocks were fastened to the floor by screw bolts, and that the counter shaft for running the lathe, and which was part of it, was fastened by bolts to the ceiling; and the other lathes were fastened to the floor by driving staples across the feet to the floor, and the counter shafts bolted to the ceiling. All the lathes were run by steam power, but one was rigged for foot power, and partly worked with a treadle. Another witness, Ezekiel Mann, said the lathes were all fastened to the floor by staples or hooks. On the part of the defendant, it was stated by one witness that the lathes were, not fastened to the floor in any manner. But the question is not whether these lathes were bolted and strapped to the floor and *279ceiling; for if they were a necessary part of the machinery for carrying on the business of the machine shop, they belonged to the manufactory, whether bolted to the floor or not. That a machine shop for manufacturing railroad cars would be incomplete, if not useless, without lathes, is almost a self-evident proposition; and that one of these lathes was little used, is not material, for the character of the machinery does not depend upon its frequent use, nor upon its' precise adaptation to the purposes for which it is intended. In Voorhis v. Freeman, 2 W. & S. 116, duplicate rolls in an iron rolling-mill were held to be fixtures, because they might be wanted in an emergency, as those in use were liable to be broken. Voorhis and Freeman, where it was held that the rolls of a mill were part of the freehold, because they were necessary in manufacturing iron, followed as it was by Pyle v. Pennock, 2 W. & S. 390, and repeatedly recognised by subsequent cases, is of unquestioned authority; and the principle there ruled is applicable to the case in hand, for it is clear that lathes are as necessary in a machine shop as rolls are in a rolling-mill. It was not in the power of the defendant to evade this rule of law by proving that there was a custom in opposition to it; and the rejection of the question relative to damages, even if erroneous, becomes immaterial by the verdict of the jury.

Judgment affirmed.