77 Mo. App. 538 | Mo. Ct. App. | 1898
The O’Neil Lumber Company obtained a judgment against Shooting the Chutes Company enforcing a mechanics’ lien against certain lots and the buildings thereon. A special execution was issued and the property was levied upon by the sheriff. In a shed-room on the premises, which is designated as the power
In 1896, the Shooting the Chutes Company constructed a pleasure resort, and the relator had the contract to furnish the necessary machinery for the electrical plant, which formed a part of the improvements. The contract was in writing and dated September 3, 1896. That portion of the contract which is pertinent, is as follows:
“And we further agree that if, through any defect or incapacity, it shall be shown that said steam plant after installation, prove inadequate, to fulfill all or any conditions of this contract, said plant shall be removed at our cost, and all monies paid by Shooting the Chutes Company shall be refunded to them by us.
“Terms — We are to operate the plant until the Shooting the Chutes Company is satisfied for a period not to exceed ten (10) days, and upon turning the plant over to the Shooting the Chutes Company, we are to receive six hundred and ninety ($690) dollars then and there; the remaining (690) six hundred and ninety dollars to be paid on or before thirty days after first payment.”
The plant was put in operation on September 20, 1896, and was run each succeeding night up to the following Thursday, when all of the property belonging to the company was seized by the sheriff under attachment.
The defendants admitted the execution of the-bond, but denied all other allegations of the petition. As special defenses it was averred that the machinery had become a part of the realty and had thereby lost its identity as personalty, which precluded the relator from maintaining his claim, and further that subsequent to the assignment the relator filed a mechanics’ lien on the property of the Shooting the Chutes Company. for the value of the identical machinery, by reason of which the defendants averred that the relator is now estopped as against the O’Neil Lumber Company from asserting that the title to the machinery had not passed from him. The reply put in issue the new matter. At the conclusion of the evidence for the relator, the circuit court at the instance of the defendants instructed the jury that under the pleadings and evidence the verdict should be for the defendants. Thereupon the plaintiff submitted to an involuntary nonsuit,, and the court having refused to set the nonsuit aside,, it has appealed to this court.
As to title counsel for respondents argue in support of the instruction of nonsuit that the question is not at what time, if ever, did the machinery cease to be "the property of the' relator, but when if at all, did it revert to him. What was the intention of the parties as to the title to the property? This must be determined by the contract itself and the subsequent conduct of the parties. Was it intended that the title should vest in the Shooting the Chutes Company while the machinery was being tried, subject to the option of the company to reject it if it proved unsatisfactory? This is the position of the respondents. Or was it their intention, as Appellant contends, that the title should remain in the relator until the officers of the company upon a trial of the machinery signified their satisfaction and intention to keep it? If the construction contended for by the respondents is right, then the judgment of
It is argued that the evidence shows conclusively that the machinery had been annexed to the freehold in such a way as to make it a fixture, thus precluding the relator from claiming it as personalty. It is not necessary for us to discuss what is and what is not a fixture. It is sufficient to say that under our construction of the contract the parties agreed that the machinery should not become a fixture until it was accepted by the Shooting the Chutes Company. Richardson v. Koch, 81 Mo. 264.
The last ground of nonsuit is that by filing a mechanics’ lien against the machinery the relator is estopped as against the O’Neil Lumber Company to assert that the title to the machinery had not passed from him. Counsel cites authorities to the effect that a party will not be permitted to assume inconsistent and antagonistic positions as to the subject-matter of the litigation. This is unquestionably true where to allow a party to shift his position would be to the prejudice of his adversary. The facts here present no such case. The O’Neil Lumber Company could not possibly have been induced to act as it did on account of anything the relator did. It pursued the only course that was open to it for the collection of its debt. With the concurrence of the other judges, the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.