64 So. 870 | La. | 1913
Lead Opinion
The Augusta Sugar Company, being insolvent and in the hands of a receiver, Payne & Joubert intervened in the receivership proceedings, asking that their vendor’s privilege upon a vacuum pan, a vacuum pump, a water pump, a tower tank, an oil storing tank, and three Magma tanks, sold by them to the now insolvent company, and erected by them on its plantation, and never paid for, be recognized, and that the receiver be ordered to sell said machinery at once to satisfy their said claim.
In all cases like the present the question is; not as to whether or not the movables have become immobilized by destination, under articles 468 and. 469, O. G., for they unquestionably have, but it is whether they háve become so incorporated into, or merged in, the immovable property, as to have become part and parcel of it, and thereby ceased to be movables; with the consequence that the vendor’s privilege upon them, qua movables, has ceased to exist. Swoop v. St. Martin, 110 La. 237, 34 South. 426.
The question of when or under what circumstances this merger will be held to have taken place is one to be determined from the particular facts of each case. In the case of Hibernia Bank v. Knoll, 63 South. 288,
The interveners in this case were not mere furnishers of materials. Had they claimed the latter privilege and sought to enforce it, they would have found themselves in the same predicament as the plaintiffs in Scannell & Lafaye v. Beauvais, 38 La. Ann. 217, who, having sold “two clarifiers and fittings, one copper evaporator and fittings, one skimming tank, two boilers, one steam mud drum, and one No. 3 Knowles plunger pump and steam pipe for same,” sought to claim a furnisher of material’s privilege, and were told by the court that they had claimed the wrong privilege, that they should have claimed that of the vendor. See, also, Shakespeare v. Ware, 38 La. Ann. 570, where the vendor of a vacuum pan made the same mistake, and lost his claim in the same way. The pieces of machinery sold by the interveners cannot be classed as materials; each is in itself a comifiete piece of machinery.
Much testimony was taken on the point of what damage would have to be done to the company’s sugarhouse for removing this machinery. This evidence showed no damage at all would have to be done except for the vacuum pan. For removing it an opening would have to be made in the corrugated iron wall of the structure inclosing it, and a wooden platform built around it for the sugar maker to stand on would have to be removed in part. But the evidence shows that this could be done and the premises restored to their present condition at a comparatively trifling expense. We do not think that machinery like this vacuum pan, costing thousands of dollars, loses its identity and becomes merged in the building within which it is placed (becomes mere building material, as it were) simply because for removing it an opening easily repaired would have to be made in the side of the building, or a wooden platform built around it would have to be taken down in part or in whole — all at small expense. ■ ■■
The vacuum pan does not lose its identity as a piece of machinery complete in itself and retaining its individuality after removal, simply because this corrugated iron building is constructed around (and above it to protect it from the weather, or because this inexpensive wooden platform is constructed around it.
The answer to that contention is that the interveners are not now proceeding against the company; but against the receiver; that the receiver took possession of this machinery subject to the right of the interveners to have it sold whenever their debt should become payable (Thompson v. Southern Mill, 123 La. 127, 48 South. 769); and that that time has arrived.
Judgment affirmed.
Dissenting Opinion
I dissent in so far as the judgment recognizes a vendor’s privilege on
Rehearing
On Rehearing.
After a second hearing of this cause, we are satisfied with the correctness of our former opinion and decree herein.
No such defense was urged in the answer below, which treated all the tanks as parts of the machinery of the sugarhouse.
In their original brief counsel for the receiver said:
“The oil storage tank is some distance from the refinery, but is attached to the main building by pipes, and in it are stored the oils which are used for the purpose of generating the power by which the refinery is operated. The Magma tanks are not in the refinery proper, but are in a shed attached adjacent to the refinery.”
In the same brief it is further said:
“That these various pieces of machinery * * * have become a part of a co-ordinate whole which is the refinery itself, * * * and they cannot be removed without destroying or damaging the refinery as a whole, or without destroying its usefulness, that they therefore become immobilized and are immovables by destination.”
We agree with counsel that the tanks are parts of the machinery. Considered as such, the views set forth in our former opinion are applicable to them. That the tanks can be removed without any injury to the sugarhouse cannot be disputed. That in case of a sale they may have to be taken apart to remove them from the premises does not make them immovables.
The judge below decided all the issues of fact in favor of the intervener, and. the record does not disclose that his findings are against the preponderance of the evidence.
It is therefore ordered that our former decree herein be reinstated and made the final judgment of the court.