Ambs v. Hill

• Decision Date: 22 March 1881
• Citation: 10 Mo.App. 108
• Parties: JACOB AMBS, Appellant, v. FREDERICK HILL, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 108

JACOB AMBS, Appellant,

v.FREDERICK HILL, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 22, 1881.

1. A tenant may remove fixtures, if the removal can be effected without serious injury to the freehold.

2. The question as to whether the removal can be had and leave the freehold in as good condition as before, is for the jury.

3. Where it is admitted that if an absent witness were present he would swear that the fixtures could be removed without injury to the freehold, it is error to take the case from the jury, there being evidence to support the plaintiff's case in other respects.

4. Where an affidavit for a continuance sets forth the facts which an absent witness would prove, and the continuance is denied on the ground that the other party admits in writing that the absent witness would prove certain facts, if it is contended by the party applying for the continuance that the written admission and the affidavit differ in any material particular, and he does not offer to read to the jury the affidavit but reads the admission, he waives the point and will be presumed to have accepted the ruling of the court.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

FREDERICK GOTTSCHALK, for the appellant.

DAVID MURPHY, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This action was originally brought before a justice for $100, the alleged value of a cooking-range which defendant is said to have converted to his own use. On trial anew i the Circuit Court, it appeared that plaintiff held a chattel mortgage on the furniture of a saloon carried on by one Schultz. Schultz rented the premises from defendant. Schultz was about to remove the mortgaged chattels; and, in accordance with the mortgage and by permission of defendant, plaintiff took possession of the goods, and was proceeding to remove them. Schultz was in default for his rent; and defendant had obtained judgment for possession under a landlord's summons, under which summons an execution had issued. Plaintiff was about to remove the range, but was forbidden to do so by the constable, on the ground that the range was so built into the chimney that it could not be removed without serious injury to the house. Defendant assented to the action of the constable, and the range was, therefore, left on the premises; and the succeeding tenant of defendant took it down, sold it for $3, and expended $16 in restoring the premises to the condition in which they were before the removal of the range.

On the trial, plaintiff applied for a continuance, on the ground of the absence of two witnesses, as to one of whom the affidavit stated, that he would swear, amongst other things, that this range could be removed without any detriment to the building, and that it...