American Clay Machinery Company v. The Sedalia Brick & Tile Company
| Decision Date | 17 November 1913 |
| Citation | 160 S.W. 902,174 Mo.App. 485 |
| Parties | AMERICAN CLAY MACHINERY COMPANY, Respondent, v. THE SEDALIA BRICK & TILE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.
AFFIRMED.
Judgment affirmed.
G. W Barnett for appellant.
Brown Cell & Myers for respondent.
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 or 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 encumbrance 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 encumbrance 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 encumbrance 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 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 taken, then, in the absence of a record showing to the contrary, it will be presumed the proper steps were taken at the proper time and term. The abstract in this case does not use the expression "the appeal was duly taken" but it does contain the legal equivalent of that statement and is, therefore, sufficient to bring the abstract within the spirit and purpose of the aforesaid rule which is to simplify, as far as lies within the court's unaided power, the process of perfecting an appeal. It is suggested, however, that the statement "the appeal was duly taken" in the exact words of the rule is much more compact and comprehensive than any other which can be used to express that fact. In using the above concise phrase, appellants will run no risk of having their abstracts held insufficient, and the appellate court will not be required to pass on the sufficiency of such abstracts in this respect.
The original petition and also the first amended petition contained no description of the property sought to be replevied, but alleged it was certain articles more fully "described in a certain invoice hereto attached, marked Exhibit 'A' and made a part hereof." An exhibit is no part of the petition even though it is attached thereto and the petition says it is a part of it. [Curry v. Lackey, 35 Mo. 389; Bowling v. McFarland, 38 Mo. 465; Robinson v. Levy, 217 Mo. 498, l. c. 510.] Consequently neither the petition nor the first amended petition described any property. Hence they were open to demurrer. The defendant, however, did not demur, but answered the second amended petition denying that plaintiff was "the owner of or entitled to the possession of the property mentioned in said petition." And after a jury was empaneled and the trial commenced, defendant objected to the introduction of any evidence. Thereupon plaintiff obtained leave to, and did, file a second amended petition over the objections and exceptions of defendant. The latter then refiled its answer to the second amended petition and went to trial. The point is made that neither the original nor first amended petition stated any cause of action at all, and hence they were not amendable. But, as defendant recognized the second amended petition as describing property and as stating a cause of action by filing an answer and going to trial thereon, this was a recognition of the fact that the petition described some property and stated some sort of a cause of action sufficient, at least, to permit an amendment. It has been held that, even in a case where the petition failed so utterly to state a cause of action as to be grounds for arresting a judgment obtained thereon, it could be aided by the filing of an answer. [Donaldson v. Butler Co., 98 Mo. 163, 11 S.W. 572; Dillard v. McClure, 64 Mo.App. 488, l. c. 491.] The first amended petition, therefore, could not be regarded as no petition at all, and, by answering to the second amended petition, defendant waived any error there may have been in allowing the last amendment. [Carter v. Baldwin, 107 Mo.App. 217.]
For the same reasons the first amended petition was not incapable of being amended because of the claim that it failed to state that defendant is in possession of the property, or that it unlawfully detains the same, or that plaintiff is the owner and entitled to the possession thereof. So far as the last two necessary allegations are concerned, the said petition does contain them, and as to the first two, it inferentially makes them by alleging facts from which they arise. We do not say that said petition was sufficient, but only that it was not such an absolute nonentity as to be incapable of amendment under the circumstances hereinabove set out and in view of the liberality with which amendments should be allowed.
The objection to the sufficiency of the second amended petition, on which the case was tried, is likewise untenable. It does allege that the plaintiff is the owner of and entitled to the possession of the property. It was not necessary, perhaps, to set out a large part of what is stated in the petition. [First National Bank v. Ragsdale, 158 Mo. 668, 59 S.W. 987.] But the fact that it does state them, and then, in a separate and concluding paragraph, says "by reason of the premises considered" it is the owner of said machinery and materials and is lawfully entitled to the possession thereof, does not prevent such allegation from being an unqualified assertion of ownership and right to possession. The statement of facts contained in the petition did not destroy it, but such statement could be treated as surplusage unless the issues upon which recovery was had were broader or different from those limited and made specific by the facts alleged. [Kansas City, etc., Co. v. McDonald, 118 Mo.App. 471, 95 S.W. 279.] They did not narrow or limit the issues in this case. In fact it may have been well enough to allege, as it did, the agreement in the contracts of purchase that the machinery should remain personal property the title to which should stay in plaintiff till paid...
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