82 Minn. 483 | Minn. | 1901
This action is one in claim and delivery for a quantity of copper wire. It was brought to recover the possession of 31,423 feet of such wire, but only 13,029 feet are in dispute. Defendants had judgment therefor in the court below, and plaintiff appeals from an order denying a new trial.
The cause was tried below without a jury, but the trial court made no specific findings of fact, and only found the ultimate fact that defendants were entitled to the possession of the wire. Nor was any request made for specific findings. So if the evidence, upon any theory consistent with legal principles, will sustain the ultimate fact so found, the order appealed from must be affirmed.
The principal facts in the case, as we gather them from the evidence and concessions in the briefs of counsel, are about as follows: In October, 1892, the Motor Line Improvement Company, a corporation, owned a partly-equipped line of street railway in the city of Duluth, extending from East Twenty-Seventh street, in said city, to Woodland Park. At that time said company entered into a contract or agreement with the Duluth Street-Railway Company, by which the latter company undertook, under certain terms and conditions specified and set forth in the writing, to operate the motor company’s line in connection with its own line. It was under, no duty or obligation, under the contract, to equip the' motor company’s line. Such line was fully equipped for all ordinary traffic at the time the agreement was entered into, and the street-railway company agreed to keep and maintain it in that condition.
Plaintiff asserts title and right to the possession of the wire through a trust deed executed by the motor company to secure the payment of $200,000, an indebtedness incurred by that company in the construction and equipment of its road. The deed was executed in 1892, long prior to the date of the transactions between the motor company and the street-railway company, and purports to cover all the line o.f railway in question, including wires, poles, and such other fixtures and equipments as might thereafter be acquired as a part of the railway line. Default was made in the payment of the amount secured by the trust deed,
Plaintiff contends (1) that the sale of the wire from the street-railway company to the motor company was absolute, and delivery of possession was complete and unconditional at time of sale; (2) if a lien for the purchase price was in fact reserved, it was thereafter lost and waived by the dealings of the parties; and (8 and 4) that the foreclosure action and the action to determine adverse claims bar defendants’ claim. The findings of the court below negative all these contentions, and the only question for us to determine is whether the findings are sustained by the evidence.
There is no question but that the street-railway company purchased and paid for the wire under an agreement that the motor company should repay the cost thereof, and no claim that the street-railway company ha.s ever been repaid or otherwise reimbursed by the motor company or by plaintiff. The removal of the wire from the poles in no way injured the line of railway, nor lessened, diminished, or impaired the security covered by the trust deed, or deprived the holder thereof of any right conferred thereby, and, as remarked by the learned trial judge, unless some decisive rule of law requires the wire to be taken from defendants, who hold it as security for the purchase price, and given to plaintiff, it should be left with those who paid value for it.
It is claimed by defendants that neither the title nor the right to the possession of the wire ever passed to the motor company; that the passing of such title was expressly conditioned upon payment being made therefor; and that the street-railway company retained by agreement a lien thereon for the purchase price, and that such lien is still subsisting and of full force and effect.
The wire was purchased to be used in operating the motor company’s line, not to equip it. The street-railway company was under no obligation to furnish it under the operating contract. It was furnished under the separate contract and agreement made subsequently, was used exclusively in operating the line, and was at all times in the possession and under the control of the street-railway company, or Mendenhall, its receiver. They retained all the possession the nature of the property and the uses to which it was put would permit. It was never given into the possession of the motor company, and such company never had other than such constructive possession as might arise by implication of law from the fact that it Avas upon its poles along its line of railway. But as such railway line, and all its fixtures and équipments, were, at the time in question, out of its possession and control, and in the possession of the defendants, such constructive possession can, in no view of the law, have effect to devest the lien held by the street-railway company. The wire not only never got into the possession of the motor company, but remained personal property, and never became a part of its line of railway. The court below was therefore fully justified in finding a possession of the wire in the street-railway company or Mendenhall sufficient to support and sustain the lien for its purchase price. Globe M. Co. v. Minneapolis Ele. Co., 44 Minn. 153, 46 N. W. 306; S. W. v. Stanard, 44 Mo. 71, 79; Merchants Nat. Bank v. Stanton, 55 Minn. 211, 56 N. W. 821; Farnsworth v. Western, 6 N. Y. Supp. 735; German v. Weber, 16 Wash. 95, 47 Pac. 224; Prouty v. Barlow, 74 Minn. 130, 76 N. W. 946; Holly Mnfg. Co. v.
In the case of Merchants Nat. Bank v. Stanton, supra, it appeared that defendant therein had constructed a building upon land not owned by him, but which he was occupying with the permission of the owner, but with no agreement or understanding with such owner that the building should be considered personal property, and the court implied an agreement that it should remain the personal property of defendant, notwithstanding the fact that it was attached to the real estate and equipped as a factory; and that, too, as against a prior mortgagee. If such an agreement was properly implied as a matter of law in that case, a similar implication would arise and should be applied in this case, to the extent necessary to preserve the .defendants’ lien. See also as pertinent to the subject, Farmers’ L. & T. Co. v. Minneapolis E. & M. Works, 35 Minn. 543, 29 N. W. 349; Pioneer S. & L. Co. v. Fuller, 57 Minn. 60, 58 N. W. 831; U. S. v. New Orleans R., 12 Wall. 362; and Porter v. Pittsburg B. S. Co., 122 U. S. 267, 7 Sup. Ct. 1206.
There was no separate assignment of the lien claim to Mendenhall; but it was not necessary that it be independently assigned. It is well settled that the assignment and transfer of a debt carries with it all liens or other securities for its payment. Kinney v. Duluth Ore Co., 58 Minn. 455, 458, 60 N. W. 23. Nor does the fact that the motor company gave its promissory note for the debt constitute a waiver of the lien. Washington S. Co. v. Burdick, 60 Minn. 270, 62 N. W. 285; Geib v. Reynolds, 35 Minn. 331, 28 N. W. 923. Nor was it waived by the fact that the note was put into judgment. Jones, Pledges, § 591; 16 Am. Enc. Pl. & Pr. 636. Notwithstanding the fact that a promissory note was taken for the debt, and the note subsequently put into judgment, so long as the" debt remained unpaid and defendants held and retained possession of the wire, under the agreement that it' should be held as security, the lien survived, and remained in full force and effect.
Retention of the possession of the property is unquestionably essential to the validity and life of a lien such as defendants rely
It is contended by appellant that defendants’ claim of lien was barred, and they were estopped from asserting the same, by the judgment entered in the foreclosure action and the judgment in the action to determine adverse claims. There is no finding of fact that this particular wire was involved in either of those actions. The court undoubtedly concluded that it was not; for such conclusion was necessary to the ultimate fact that defendants are entitled to the wire. If the wire was involved in either
Order affirmed.