Walker v. Grand Rapids Flouring Mill Co.

70 Wis. 92 | Wis. | 1887

LyoN, J.

The evidence is undisputed that the plaintiffs never sold or contracted to sell the machine in controversy to Pomeroy or any one else. It is claimed, however, on behalf of the defendant, that because they intrusted the machine to Pomeroy, and he placed it in the mill of Neeves & Podawitz under a contract to put such a machine in their mill, and because that firm had no notice or knowledge, until it was so placed, that Pomeroy was not the owner of it, the plaintiffs should be estopped to claim the machine as their own property. Were it true that Neeves & Podawitz, before they had notice that Pomeroy was not the owner of the machine, and believing him to be the owner, had paid him therefor, or had they done any other act to their prejudice on the faith that Pomeroy was such owner, there would be great force in the claim thus made on behalf of the defendant. But such is not the case. When the machine was shipped to Grand Rapids it was consigned to the plaintiffs, and the firm knew that fact. This of itself was a circumstance which might well put the firm upon inquiry as to who was such owner. More than this, there is no testimony whatever tending to show that the firm ever paid Pomeroy any money, or did any act whatever, or in any manner changed their position on the faith that Pomeroy owned the machine, before they were notified to the contrary. , It may be observed here that the testimony on this question of notice was conflicting; but manifestly the court found that such notice was given, as testified to by Mr. Ball. Notice to Neeves operates as notice to the defendant corporation, whose affairs were managed by Neeves from its organization, and of which he was an officer. We conclude, therefore, that the plaintiffs are the owners of the machine, and may recover its value in this action unless some disposition has been made thereof which will defeat them. The principal ground upon which it is claimed that such a disposition has been made is that it has been so annexed to the mill as to become a permanent fixture, and therefore part and parcel of the freehold.

In Taylor v. Collins, 51 Wis. 123, Mr. Justice Obt®N lays down the following rules or tests for determining whether articles of machinery are fixtures: “(1) Actual physical annexation to the realty; (2) application or adaptation to the use or purpose to which the realty is devoted; (3) an intention on the part of the person making the annexation to make a permanent accession to the freehold.” In the present case, the requirement of the third rule is entirely wanting. The machine was not furnished to Pomeroy by the plaintiffs to be made a permanent accession to the free-bold, unless some person interested should thereafter purchase it, and there is no evidence that Pomeroy had any such intention. He had no right to make the same a permanent accession to the freehold, and the legal presumption is that he did not. The fact that it was attached in the manner above stated to the building and freehold is not significant. It was not so incorporated with the building as to lose its identity or to render it difficult or injurious to the building to remove it.

' In the case of Second Nat. Bank v. O. E. Merrill Co. 69 Wis. 501, it was held that a large amount of machinery in a foundry building, indeed all the- machinery therein over and beyond the water-wheel, much of which was attached to the building more extensively and firmly than was the machine in controversy here, were not permanent fixtures, but personal property, which the tenant who placed the machinery there had a right to remove. This case illustrates of how little importance the mere fact of attachment to the freehold is, so long as the identity of the’ property remains, and its capacity to be removed and used elsewhere. The principal consideration in such cases is the-intention of the party putting in the machinery.

Counsel for the defendant greatly rely upon the case of' Woodruff & B. Iron Works v. Adams, 37 Conn. 233. An examination of that case shows that it was decided upon the ground that the property in controversy was so attached to the building as to lose its identity. The same is true of the case of Fryatt v. Sullivan Co. 5 Hill, 116, affirmed by the court of errors, 7 Hill, 529, also relied upon by counsel for defendant. The principle of these cases will apply where boards, timber, brick, or stone are incorporated in a building. They necessarily become a part of the building, and thus lose their identity as personal property. It should be observed that in both the above cases the owners of the freehold had paid their vendor or contractor for the articles thus made fixtures, in good faith and without notice that such articles belonged to other parties.

See notes to this case in 35 N. W. Rep. 332, and 26 Cent. L. J. 372-5.— Rep.

The case of Detroit & B. C. R. Co. v. Busch, 43 Mich. 571, as well as many other cases cited to the same proposition, belongs to this class. In the latter case it was held that the ties used in the building of a railroad thereby lost their identity as personal property, and an action for their conversion could not lie. Other cases are cited on behalf of the defendant, in which the judgments were controlled by the consideration that the owners of the buildings in which the machinery in controversy had been placed by contractors had paid therefor in good faith, believing that such contractors owned the machinery, when in fact they did not. Ve have already seen that this is not such a case.

The foregoing considerations lead us to the conclusion that the machinery in question in this case remained the personal property of the plaintiffs, and that they are entitled to recover therefor in this action.

By the Court. — -The judgment of tjie circuit court is affirmed.