Hinkley & Egery Iron Co. v. Black

• Decision Date: 27 February 1880
• Citation: 70 Me. 473
• Court: Maine Supreme Court
• Parties: HINKLEY & EGERY IRON Co. v. GEORGE N. BLACK.

70 Me. 473

HINKLEY & EGERY IRON Co. v. GEORGE N. BLACK.

Supreme Judicial Court of Maine.

February 27, 1880

ON REPORT.

TROVER to recover the value of certain personal property, situated and being in and upon township No. 39, Hancock county, and particularly upon that portion of said township, excepting the western mile strip, viz: The extract works and buildings the circular saw mill and all tools and machinery in said works and buildings, and all staves and barrel machinery and tools, and the stable sheds and dwelling-house therein, all of the value of nine thousand dollars ($9,000).

The question was, in which party was the title.

The plaintiffs to sustain their title introduced a sealed contract duly executed and delivered to John D. Hopkins and James H. Hopkins, on November 17, 1866, by the defendant wherein he covenanted and agreed with the said Hopkins their heirs, etc., to convey by deed of warranty to them a certain large tract of land described, the conveyance to be subject to " the following qualifications and explanations namely, all taxes to be by said Hopkins borne and paid upon any and all of said property which may be apportioned or assessed after the date of this paper, and all losses by fire or freshets, and all other injuries, losses, depreciations or destructions which may occur without my fault from and after this date, to be upon the risk and liability of said Hopkins, the same as if they had become absolute purchasers of said property as of this date."

" And said conveyance is also to be made only upon the express condition that the said Hopkins shall pay me on or before the time when the same may become due, severally, the following described notes, of this day, given by said Hopkins to me, namely, four notes, each for the sum of nineteen thousand two hundred and sixty dollars, payable, with interest annually--one in one year, and one of them in two years, and one in three years, and one in four years, respectively, from date; and if said notes and interest thereon, or any one of the same, shall not be paid as the same may become due, then my obligation to convey shall become null and void, time being expressly regarded as of the essence of this agreement. And although the said Hopkins are permitted to go into immediate possession of said property, to use and occupy as their own, still I retain the right, to me and my heirs and administrators, to assume and take and enjoy, without notice or suit, or process or hindrance, possession of any and all of said property, and whatever may be taken from the same, at any and all times, when I may deem such a step expedient for the purposes of my own security."

A mortgage from J. D. Hopkins & Co., a firm composed of John D. Hopkins, James H. Hopkins, Charles D. McDonald and Edward K. Hopkins, to the plaintiffs of the property in controversy, dated October 14, 1876, to secure the payment of four certain promissory notes given by the mortgagors to the mortgagees was introduced, also a notice of the foreclosure of the mortgage dated November 13, 1877. All of which were duly recorded.

There was testimony in behalf of the plaintiffs tending to show that J. D. Hopkins & Co. entered into possession under the contract soon after its execution; that they commenced erecting the buildings thereon in March, 1875, and completed them before October 14, 1876, when the works were completed and in full operation; that partial payments were made upon the contract, the last payment having been made in 1876, and that they suspended December 5, 1877, and the contract was surrendered to the defendant; that the partial payments were made by J. D. Hopkins & Co., and receipts therefore given to J. D. & J. H. Hopkins.

That the defendant knew of the erection of the works and did not object thereto; and that they were erected by and for the firm.

In cross-examination it appeared that at the time of erecting the works, the firm expected to receive the title eventually; that the machinery was put in with the intention that it should be permanent; that the defendant never gave any express consent for the erection of the works, or the putting in of the machinery, nor was there any understanding with the defendant that it should ever be taken off the land; that the firm refused for a while to give the mortgage for the reason that they did not own the land, but finally yielded, being embarrassed at the time.

The buildings were as follows:

A leach house 45 feet square, 48 feet high, in which was an engine, main line of shafting, three pumps, leaches and elevator. The earth was excavated for foundation, and stone foundation, with stone piers under the building. The engines rested on the piers, fastened by anchor bolts. The main shaft ran out into another building, called bark mill, held by couplings bolted to posts. Another upright engine in the condenser house--another building. Steam pumps sat on floor on a six inch timber fastened to the floor through timbers.

Next adjoining was the boiler house 22 by 54 feet brick, and containing the furnaces, two boilers set in masonry in the ground, the building also sitting on masonry. Then the condenser house 52 by 54 feet and 45 high containing large tanks known as coolers. The condensers were built solid in a cradle fastened to the timbers, the whole resting on abutments under the floor. The coolers and condensers were connected with the leaches by pipes.

The bark mill, 13 by 35 feet, into which the main shaft passed, standing on stone piers. The bark mills were built on a foundation in an excavation. The limb cutter was driven from the shaft in the main line and was bolted to the floor. The elevator ran from under the bark mills through into the roof of the main building and delivered the bark into the leaches.

The stave mill contained stave machinery fastened to the floor with bolts.

The saw mill 22 by 65 feet, the foundation of which was excavated and stoned.

All these buildings were connected together and intended to be permanent.

The dwelling house, 24 by 30 feet, sat on cedar posts, intended to be permanent and used for boarding the men engaged in running the mills.

The remaining facts appear in the opinion.

This case was submitted to the law court upon the foregoing evidence, or so much thereof as is legally admissible. If, in the opinion of the court, any of the property claimed in the writ is the property of the plaintiff, judgment is to be rendered for the plaintiff, for such articles as belong to them, without damages; it being agreed that no damages are claimed, the plaintiff instead thereof to have the right to remove such articles within a reasonable time after judgment, with free access to them for that purpose. If none of the property belongs to the plaintiff, then judgment for defendant.

Wilson & Woodward, for the plaintiffs, contended that the question involved had already been substantially decided. Russell v. Richards, 10 Me. 429. Wells v. Bannister, 4 Mass. 514. Osgood v. Howard, 6 Me. 452. Pullen v. Bell, 40 Me. 314. Rines v. Bachelder, 62 Me. 95.

Black's knowledge of the erection of the buildings and receipts of further payments in 1876 and 1877, operated as a subsequent assent that the erections might remain and made them personal property same as if he had given previous consent to their erection. Fuller v. Tabor, 39 Me. 519. The plaintiffs had a right to rely upon the law of that case as they did. Otherwise they would not have furnished the machinery.

Massachusetts doctrine is different. Milton v. Colby, 5 Met. 78. Eastman v. Foster, 8 Met. 19. Murphy v. Morland, 8 Cush. 575. Oakman v. Dorch. M. F. Ins. Co. 98 Mass. 57. Stare decisis. Broom's Leg. Max. 114-116. 1 Kent's Com. 475-6, 8. Goodlittle v. Atway, 7 T. R. 395, 415. Spicer v. Spicer, Cro. Jac. 527. King v. St. Paul, 13 East. 320. Western v. Mayor of Brooklyn, 23 Wend. 334, 341. Ram. Judgmt. c. 14, § 4, appendix 3. Briscoe v. Bank Com. (Ky.) 11 Pet. 257, 285.

C. P. Stetson & L. A. Emery, for the defendant.

SYMONDS J.

On the seventeenth day of November, 1866, the defendant gave to John D. Hopkins and James H. Hopkins an agreement to convey to them a large tract of land in Hancock county upon certain specified terms and upon the express condition that the said Hopkins should pay him on or before maturity four notes for $19,260 each, payable with interest annually in one, two, three and four years from that date. If the notes and interest, or any one of the same, were not paid when due, then the obligation was to be void, time being expressly regarded, as of the essence of the agreement. The said Hopkins were to go into immediate possession of the land, to use and occupy it as their own, the defendant reserving the right to take possession of the property, and of whatever might be taken from the same, whenever he deemed it expedient for his own security.

The said Hopkins, with Edward K. Hopkins and Charles D. McDonald, forming the firm of J. D. Hopkins & Co., went into possession under the contract, erected large and substantial buildings, with engines and machinery, for the purpose of manufacturing an extract from bark, to be used in tanning. These are referred to in the writ as the Extract Works. There were also mills, dwelling-house, stable, and appurtenances.

On the fourteenth day of October, 1876, the said firm of J. D. Hopkins & Co., gave to the plaintiffs a personal mortgage of the buildings so erected, and of the machinery and other property, for an alleged conversion of which by the defendant the plaintiffs in this case claim to recover.

The payments were not all made as required by the contract, and for a certain period there seems to have been a waiver by the defendant of the requirements in regard to time...