108 So. 239 | Ala. | 1926
This is an action of detinue instituted by M. D. Gray against W. R. Crowell and his wife for "one lunch stand on wheels." The defendants plead (A) general issue; (B) that the property sued for is a building, a permanent fixture as such attached to the realty, and a part of the freehold. The plaintiff joined issue on these pleas. The court sustained demurrer to plea C, and overruled demurrer to plea D. The jury returned a verdict in favor of the defendants, and, from a judgment thereon by the court, this appeal is prosecuted by the plaintiff.
There are no facts averred in plea D showing relation of landlord and tenant existed by an expressed or implied contract between plaintiff and defendants, by which defendants had a lien on this lunch stand, and no facts are averred showing defendants had a lien on it by operation of law, and the plea probably contains other defects not pointed out by the demurrer. The court erred in overruling the demurrer of the plaintiff to this plea; it should have been sustained. Section 4753, Code of 1907; Spence v. McMillan, *426
This lunch stand was called a "Hamburger wagon on wheels." It was a room 8 feet by 10 feet or 10 feet by 12 feet in size, built on two axles, supported by four wheels of an automobile frame. It was so erected that it could be rolled and pulled on its wheels from place to place, and was used as a lunch stand in the city of Russellville. It belonged to the plaintiff. He had it in the garage of one McAllister, and it was being used by McAllister. There is evidence that plaintiff afterwards rented it to Aldridge Crowell, a 15 or 16 year old son of defendants. Aldridge moved it from McAllister's garage to the lot of defendants in the rear of their residence. One wheel broke down as he was moving it, and he placed bricks under that corner of it to hold it up after he located it on this lot of the defendants. Aldridge rented this lunch stand by the month, and moved it on the lot of the defendants without first securing their permission. He paid plaintiff rent for it for either one or two months, the sum of $3.50. Aldridge used this stand so located by him for about two months at this place. Then the father and mother of the boy notified the plaintiff in writing to move it off of the lot, the mother in her note demanding of him $5 for the time it had been on the lot vacant: The letter of the mother reads as follows:
"Mr. Gray: I had nothing to do with you and this child about this stand. You traded with him, and when he went out of it I notified you to take it off before I had to charge you rent. And you payed [paid] no attention to me, and he paid you for the time he used it and that was two months, and you said he only paid you for one; but he has the receipts, and now you will have to pay me for what time it has been here vacant, and that is $5.00.
"[Signed] Mrs. W. R. Crowell."
The father's note reads as follows:
"Mr. Gray, I would like for you to move the stand away today, as I am going to have some work done on my lot, and it will have to be moved away."
"Respectfully, "[Signed] W. R. Crowell."
The attorney of plaintiff called on defendants to secure possession of the wagon for plaintiff. The wife refused to give up possession of it unless she was paid $4 or $5 for the use and occupation of the lot by the wagon. This suit was then commenced.
The plaintiff requested, and the court refused to give, the general affirmative charge With hypothesis in his favor. The charge was in writing.
This room was on wheels for the purpose of being easily moved from one place to another. It was located at no particular place. It was not attached to the soil. It was rented by the month by the son of the defendants as personal property. It was used prior thereto by plaintiff as personal property. As the tenant rolled it from the garage to this lot of defendants, one wheel broke down; he then dragged it to the lot and to make it level placed a brick pillar under the corner where the wheel was broken. This did not change it from personal to real property. The entire evidence shows all the parties connected with this cause regarded is as personal property, and not as a part of the freehold. It was placed on this lot by the son of the defendants, and not by the plaintiff. The title to the wagon room was in plaintiff. This room on wheels under the undisputed evidence herein remained, and is personal property; and the court should have so instructed the jury. Section 2, Code of 1923; Clements v. Morton,
The evidence without dispute shows that the plaintiff owned this property, the lessee had it by the month, had given it up and vacated it; the defendants were in possession of it; the plaintiff had the right to the immediate possession of it; and there was evidence of its value. This would give plaintiff the right to recover it (5 Michie Dig. p. 63, § 4, subject "detinue"; Starr Piano Co. v. Zavello,
Under the undisputed facts, as shown by the record, there is no evidence indicating that a contract, expressed or implied, existed between plaintiff and defendants by which they have a lien on this property of plaintiff for reasonable satisfaction for the room on wheels being on their lot. It was placed there by their son and not by the plaintiff. It was never used there by the plaintiff. No facts are shown by the record giving defendants a lien on this property of plaintiff by operation of law on account of it being placed on their lot. Section 4753, Code of 1907; Crabtree v. Street,
It results that the court erred in refusing to give the general affirmative charge with hypothesis, requested by plaintiff in writing in his favor.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
