American Clay Machinery Co. v. Sedalia Brick & Tile Co.

• Decision Date: 17 November 1913
• Citation: 160 S.W. 902,174 Mo. App. 485
• Parties: AMERICAN CLAY MACHINERY CO. v. SEDALIA BRICK & TILE CO.
• Court: Missouri Court of Appeals

160 S.W. 902

174 Mo. App. 485

AMERICAN CLAY MACHINERY CO. v. SEDALIA BRICK & TILE CO.

Kansas City Court of Appeals. Missouri.

November 17, 1913.

1. APPEAL AND ERROR (§ 586) — RECORD — AFFIDAVIT FOR APPEAL — RULE OF COURT.

Under rule 26 (159 S. W. vii), providing that an appellant need not abstract the record entries showing the steps taken below to perfect an appeal, but that if it states that the appeal was duly taken, it will, in the absence of a record to the contrary, be presumed that the proper steps were taken, an abstract not using the expression "the appeal was duly taken," but containing its legal equivalent, is sufficient.

2. PLEADING (§ 307) — PETITION — EXHIBIT.

An exhibit is no part of the petition, even though it is attached thereto and the petition says it is a part thereof.

3. REPLEVIN (§ 59) — PETITION — DESCRIPTION OF PROPERTY.

A petition in replevin, which contains no description of the property sought to be replevied, is demurrable.

4. PLEADING (§ 403) — DEFECTS AMENDABLE — WAIVER BY ANSWER.

Where the original and the first amended petition in a replevin suit were demurrable for want of any description of the property, but defendant answered a second amended petition, denying that plaintiff was the owner of or entitled to the possession of the property, and went to trial thereon, there was a recognition of the fact that the petition described some property, and stated a cause of action sufficient at least to permit an amendment.

5. PLEADING (§ 403) — DEFECTS AMENDABLE — AIDER BY ANSWER.

Where the petition fails so utterly to state a cause of action as to be ground for arresting a judgment obtained thereon, it may be aided by the filing of an answer.

6. REPLEVIN (§ 58) — PETITION — ALLEGATION OF POSSESSION.

Where a petition in replevin, after setting out many of the facts, concluded that "by reason of the premises considered" plaintiff was the owner of the machinery, and lawfully entitled to the possession thereof, it was an unqualified assertion of ownership and right to possession, and the statement of facts will be treated as surplusage, unless the issues upon which recovery was had were broader than those specially alleged.

7. SALES (§ 459) — "CONDITIONAL SALE" — DISTINGUISHED FROM CHATTEL MORTGAGE.

Under Rev. St. 1909, § 2889, defining conditional sales, a sale of machinery under a contract providing that it should remain the property of the seller until paid for in full, and that it should not become real estate while any deferred payments remained unpaid, was a "conditional sale."

8. SALES (§ 473) — VALIDITY — SUBSEQUENT PURCHASERS.

Under Rev. St. 1909, § 2889, making conditional sales void as to creditors and subsequent purchasers in good faith unless the condition be evidenced by writing recorded as provided in cases of mortgages of personal property, an unrecorded conditional sale is good as

between the parties and subsequent purchasers having notice thereof.

9. SALES (§ 472) — CONDITIONAL SALES — SALE BY BUYER — RIGHTS OF PURCHASER.

The purchaser of machinery, "subject to" the rights of the seller under a conditional sale, took it in recognition of, and not in opposition to, the conditions in the contract of sale.

10. FIXTURES (§ 27) — AS BETWEEN SELLER AND BUYER OF GOODS — EFFECT OF AGREEMENT.

An express agreement, in a written contract for the sale of machinery, that it should not be construed as real estate or as forming part of the building while any deferred payments remained unpaid, and might be removed if not paid for, prevented the machinery from becoming realty, even though it was firmly fixed to the real estate and though its removal might somewhat injure the realty.

11. FIXTURES (§ 1) — INTENT OF PARTIES — TEST.

In the absence of any express stipulation by which personalty sold to be attached to realty is to retain its character as personalty, the question whether it becomes a part of the freehold depends upon three conditions: Annexation real or constructive; adaptability to the purposes of the realty; and the intent of the parties, which is controlling (citing Words and Phrases, vol. 3, p. 2833. See, also, volume 8, p. 7664).

12. FIXTURES (§ 27) — AGREEMENT OF PARTIES — LIMITATION.

The placing of machinery on concrete foundations covered by a building, and attached thereto by iron beams imbedded in its walls, was not a loss of identity as personalty, so as to deprive it of its character as such under a stipulation of a contract of conditional sale.

13. SALES (§ 480) — CONDITIONAL SALES — REMEDIES OF SELLER — RECOVERY OF GOODS.

Where machinery is sold under a contract of conditional sale expressly stipulating that it should remain personal property though affixed to the realty the seller could recover possession thereof from a purchaser from the buyer, "subject to" the rights of the seller.

14. REPLEVIN (§ 69) — CONDITIONAL SALES — ACTION TO RETAKE — ISSUES.

Where certain articles were not in the list of articles sued for by a conditional seller, nor in the return of the sheriff as having been taken under a writ of replevin, and where the answer did not allege anything as to them, they were not within the issues made by the pleadings, so that the case would not be reversed on the ground that they were taken under the writ.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

Replevin by the American Clay Machinery Company against the Sedalia Brick & Tile Company. Judgment for plaintiff, and defendant appeals. Affirmed.

G. W. Barnett, of Sedalia, for appellant. Brown, Cell & Myers, of Kansas City, for respondent.

TRIMBLE, J.

This is an action of replevin, brought by the American Clay Machinery Company to recover possession of certain machinery used in the grinding and drying of clay and thereafter in manufacturing it into brick and other clay products. The machinery in question was sold to the Sedalia Clay Manufacturing Company by written contracts. In each there was a clause providing that said machinery was to remain the property of plaintiff until paid for in full, and that its installation in any building should, in no sense, be construed as making it real estate, or as causing it to form part of the building, while any deferred payments remained unpaid, and that it should retain its personal character, and not become a fixture by being placed in any building or in any manner annexed to any land, and might be taken and removed upon default in making the deferred payments. The purchaser owned a tract of land adapted to the manufacture of brick and other clay products, and the machinery so purchased was placed thereon for use in such manufacture. The machinery, or at least a certain part of it, was very large and heavy, requiring it to be attached very solidly and firmly to the real estate, being set on solid concrete foundations several feet in the ground, and attached to the building by iron beams embedded in the walls, and there were a number of underground trenches or tunnels, lined and covered with concrete, leading from the outside under the walls of the building to the machinery. In fact it was necessary to first set the machinery in place and then erect the building around it, as the machinery was too large to be taken through doors and windows. The machinery was set up by the purchaser according to specifications furnished by the seller. So that, without going extensively into the evidence, it may be safely said the machinery was very firmly attached to the real estate, and could not be taken away without opening a hole in the wall of the building in which it was housed and breaking up, with heavy sledge hammers, the concrete on which the machinery was set and to which it was fastened. After the machinery was purchased and had been thus installed, the purchaser executed a deed of trust upon all its plant and ground, in which was included the machinery so purchased from the plaintiff company. But said machinery was conveyed "subject to the incumbrance due said company." This deed was afterwards foreclosed, and the property was bought in at foreclosure sale by H. K. Bente, who was president of the Sedalia Clay Manufacturing Company, the corporation that purchased said machinery from plaintiff. The trustee's deed, in conveying the plant to Bente, also conveyed the machinery in question subject to the incumbrance thereon due the plaintiff company. Bente ran the plant awhile, and then organized the defendant corporation, of which he is, or was, the president, and to which he deeded the plant; and in this deed the machinery in question was again conveyed, subject to the incumbrance due the plaintiff company. The deferred payments not being paid, either by the original purchaser of the machinery or by Bente or the present corporation defendant, demand was repeatedly made therefor, and, failing to obtain payment, plaintiff instituted this replevin suit and took possession of the machinery. In doing so it was doubtless necessary to break up the concrete in which the supports of the machinery were embedded, and an opening had to be made in the walls of the building inclosing it, which was afterwards closed up by plaintiff, and the irons by which the machinery was attached to the walls were cut off by means of the cold chisel. At the close of the testimony each side prayed the court to give the jury a peremptory instruction to find in its favor. The court granted the peremptory instruction prayed by plaintiff, and the jury returned a verdict awarding the property to plaintiff with one cent damages. Defendant appealed.

It is urged that the appeal must be dismissed for the reason that the record does not show that an affidavit for appeal was filed, and that an order was made allowing the appeal. Since January 6, 1913, our rule 26 (159 S. W. vii) has provided that an appellant need not abstract the record entries, showing the steps taken below, to perfect an appeal, but that, if the abstract states that the appeal was duly...