Hurst v. Craig Furniture Co.
78 S.E. 960
S.C.
1913
Check Treatment

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

The following statement appears in the record:

“This action was commenced by the service of the summons and complaint on the 12th day of February, 1912.
“The plaintiff was the owner of a store building in Sumter, S. C., and same had been rented to- the J. D. Craig Furniture Company, the term expiring December 31, 1911.
“During the tenancy J. D. Craig Furniture Company had placed within said store building for its own use, some electric light wiring upon the wall and ceiling, and had painted its firm name and sign, on the upper southern corner of the outside of the southern wall of the store building. The plaintiff also claimed to own the awning frame in front of the store, horse trough in the yard, and two shop drawers.
“The plaintiff on the trial admitted that the defendant, J. D. Craig Furniture Company, had placed the electric wiring in the store, but claimed that same belonged to her, and also the other property mentioned.
*227 “Before the end of the tenancy, the defendant, J. D. Craig Furniture Company, removed the awning frame, electric wiring and horse trough, and attempted to paint out the sign of this defendant on the outside of the store building. They were prevented from painting out the sign, by the act of the plaintiff and her agent. The defendant denied having taken the shop drawers, and stated they knew nothing about them.
“This action was brought to recover $10,000 actual and punitive damages for the removal of the awning frame, electric wiring, shop drawers, and horse trough, and tearing down of the stable door, and for painting out the sign on the outside of the building, and alleged misconduct of defendants in removing same.
“The defendant, J. D. Craig Furniture Company, claimed it had a right to remove this property, on the ground that the same belonged to1 it, except the shop drawers, which they knew nothing about, and they also claimed that they had a right to paint out the sign, on the outside of the building, as it was their corporate name and business sign, and it was put up merely for the purpose of advertising. The defendants claimed that the articles removed were merely trade fixtures, and that they had the right to remove the same, during their tenancy. That the stable door fell down from ordinary wear and tear.
“The plaintiff contended, that the property could not be removed, as they were not trade fixtures, but the property of the plaintiff.
“The jury returned a verdict for $100 actual damages and $945 punitive damages, which was reduced.
“On motion for a new trial, Judge Spain granted a new trial nisi unless the plaintiff remit all punitive damages over $500, which was done, and judgment entered in due course for $600.”

The defendants appealed upon exceptions, which will be reported.

*228 First, Second, and Third Exceptions: These exceptions seem to have been taken under misapprehension, as it does not appear from the record, that his Honor, the presiding Judge, excluded the testimony mentioned in the exceptions. Furthermore, the testimony was clearly inadmissible under section 438 of the Code of Procedure (1913).

1 Fourth Exception: The presiding Judge could not have charged the jury, as contended by the appellants, without invading their province for the reason that the testimony upon that question was conflicting.

2 Pixth, Sixth, Seventh, Eighth and Ninth Exceptions: In the case of Padgett v. Cleveland, 33 S. C. 339, this Court recognized the following, as a correct definition of a fixture: “A fixture is an article which was a chattel, but by being physically annexed to the realty by one having an interest in the soil, becomes a part and parcel of it.” In that case the Court quotes with approval the following words of a distinguished Judge: “It is difficult to define the term, and there is inextricable- confusion both in the textbooks, and the adjudged cases as to what is such annexation of chattels to realty, as to make them part and parcel, and pass by a conveyance of the realty. Any attempt to reconcile the authorities on the subject would be futile, and to review them would be an endless task.”

In Evans v. McLucas, 15 S. C. 70, the rule is thus stated : “As a general rule, all things annexed to the land, become a part of it, but to this there are exceptions, as where there is a manifest intention to1 use the alleged fixtures in some employment, distinct from that of the occupier of real estate, as where the chattel has been annexed for the purpose of carrying on trade, it is not, in general, considered as part of the realty.”

Mr. Justice McGowan, who delivered the opinion of the Court in the case of Padgett v. Cleveland, 33 S. C. 339, 11 S. E. 1069, uses this language: “We think, however, the general statement may be safely made, that in the later cases *229 there has been a decided relaxation, as to' the original rule of the common law governing the freehold, and that this modern relation has been effected chiefly in favor of trade. * * * Besides this confusion in the law, and whether an article of personal property has been so annexed to the soil, as to make it a permanent fixture and as such not movable, is always a mixed question of law and fact.”

In Hughes v. Shingle Co., 51 S. C. 1, 28 S. E. 2, the Court quotes with approval the following statement of the rule: “Where a structure is placed upon land, not to promote the convenient use of the land, but to be used for some temporary purpose, external to the land, and the land is used only as a foundation, because some foundation is necessary for the business, then the structure an'd its belongings are not fixtures.”

The great confusion in regard to the law of fixtures, has arisen from the effort to construe that as a fixture in one case, because it was so regarded in other cases. A fixture involves a mixed question of law and fact. It is incumbent on the Court to define a fixture, but whether it is such in a particular instance depends upon the facts of that case, unless the facts are■ susceptible of but one inference. In modern times, the question whether the article is to be regarded as a fixture depends generally upon the intention of the parties in the particular case. Tested' by these principles the exception must be overruled.

3 Tenth and Twelfth Exceptions: We do not deem it necessary to quote the testimony, to show that these exceptions cannot be sustained.

Eleventh Exception: What has already been said disposes of this exception.

4 Thirteenth and Fourteenth Exceptions: There was testimony tending to sustain the allegations of the complaint as to the manner in which the defendant attempted to erase the sign, by the reckless use of paint.

*230 5 Fifteenth Exception: The record does not disclose the fact, that the presiding Judge ivas requested to instruct the jury, that they could not consider this element of damages, on the ground that there was a failure of testimony to sustain the allegations of the complaint, in this respect.

Judgement affirmed.

Mr. Justice Fraser disqualified.