Ames v. Trenton Brewing Co.

• Decision Date: 23 November 1897
• Citation: 56 N.J.E. 309,38 A. 858
• Parties: AMES v. TRENTON BREWING CO. et al.
• Court: New Jersey Court of Chancery

38 A. 858

56 N.J.E. 309

AMES

v. TRENTON BREWING CO. et al.

Court of Chancery of New Jersey.

Nov. 23, 1897.

(Syllabus by the Court.)

Bill by Helen Ames against the Trenton Brewing Company and another for an injunction. Injunction allowed.

This is a bill filed by the complainant, the owner of a beer saloon at the northwest corner of Fourth and Market streets, in Camden, against the Trenton Brewing Company, a chattel mortgagee claiming a lien upon certain equipments of that saloon, and August Weber, the lessee of the saloon, and mortgagor in the chattel mortgage, and seeks to enforce a covenant not to remove improvements, etc., from the saloon, and to obtain an injunction to restrain such removal, or any sale or other disposition of them. On the bill and affidavits annexed, a rule to show cause was allowed, why an injunction should not issue, restraining removal, etc.; and further depositions were taken, upon notice and cross-examination. As the bill only seeks an injunction, the parties have, by stipulation, agreed that it should be heard as on final hearing upon the affidavits and depositions already submitted. The whole controversy turns upon the operation of a covenant contained in a lease made on the 18th day of August, 1894, by the complainant to the defendant August Weber, demising the saloon, its cellar, and a part of the yard attached, for the term of one year, at the yearly rental of $480. The lessee covenants that he. Will not underlet, nor permit any one to occupy, nor use the premises for any other purpose than that of a saloon, nor "make or suffer to be made any alteration therein, without the written consent of the said party of the first part," and also covenants that, if the rent be unpaid, the lease shall be void, and that the lessor may enter, etc. It was further agreed by the lessee "that in case of any alterations, repairs, or improvements made upon the said premises, he shall leave the same undisturbed at the expiration of his said term, for the benefit of the said premises, and without charge therefor." Under this lease from the complainant, Weber went into possession of the demised premises. He shortly afterwards took a partner, Mr. Abendroth, and they did business under the name of Weber & Abendroth. About the 1st day of August, 1896, this firm leased from Lewis & Bro., manufacturers of bar fixtures and furniture, of Philadelphia, a complete set of bar furniture, consisting of a back bar, with mirrors and marble trimmings, and a front bar or counter, also with mirrors and marble trimmings, shelvings, a screen, partitions, and swinging doors; fixing a purchasing price of the goods at $1,000. In the lease between Lewis & Bro. and the saloon keepers was inserted this clause: "The lessee agrees that the said furniture shall not be attached or nailed to the building in which they are to be used, but shall be so placed and arranged as in no wise to be connected with the freehold." Mr. Weber afterwards called on Lewis & Bro., and stated that he would prefer to purchase the furniture for cash; that the Trenton Brewing Company had agreed to advance them $1,000, and to take as security a chattel mortgage on the bar furniture. The articles named were delivered on the 5th day of September, 1894, at the saloon. Payment was made in part on that day, and on the 10th of October, 1894, the balance of the full price of the purchase money was paid to Lewis & Bro., who gave to the manager of the Trenton Brewing Company, at the time when the company advanced the $1,000 to Weber & Abendroth, a full description of the bar furniture. The character of the articles furnished is described by their manufacturers to have been entirely finished and complete in their wareroom in Philadelphia; and their manager, and the carpenter who put them in, support this statement, and explain that they were cut into sections, and refitted together, because of the inconvenience of moving them in the whole pieces, as they stood in the wareroom. The only portion of the cabinet work which appears to have been specially adjusted to the building was some panel work, which extended from the Market street side, back to the end of the bar. Both the front and back bar and their equipment were complete and finished without this end, which was put in on the premises, at the request of Mr. Weber, to close that end. The bars were equipped for the drawing and selling of beer by a beer pump, with pipe and spigots. The other articles in dispute consist of two chandeliers, gas fixtures, and electric light globes. These were attached to the gas pipes on the premises by Weber & Abendroth in the ordinary manner, for the purpose of lighting the saloon. The saloon keepers had not the funds to pay for the two bars and their appurtenances. The Trenton Brewing Company agreed to lend $1,000 to enable the lessees to purchase them, and it was agreed that they should secure its payment by a chattel mortgage on the articles, when purchased. The attorney of that company came to Camden, examined the front and back bar and partition screens, and found them all movable, and unattached to the realty. He also examined the records to ascertain whether any previous liens had been fixed upon them, and, finding none, the chattel mortgage under which the Trenton Brewing Company claims was on the 10th day of October, 1894, made and recorded, and the $1,000 paid over by the Trenton Brewing Company to the mortgagors, and used by them in paying for the furniture. The articles included in the chattel mortgage were 1 cherry back bar, with marble trimmings and mirrors; shelving; door; fancy bottles, stock bottles, and bar appurtenances; beer pumps, pipes, and spigots; 1 front bar (cherry), with marble trimmings and mirrors; 1 cherry partition, with mirrors and swinging doors; 4 tables; 12 chairs; spittoons; 1 lunch table; 2 chandeliers; gas and electric light globes; 1 clock; oil cloth and matting; 1 statue, entitled "After the Bath." In 1896 the. saloon keepers had defaulted in the payment of their rent and in payment of the mortgage debt, and in December of that year the Trenton Brewing Company took possession of the various articles named in the chattel mortgage, and advertised them for sale. The complainant then filed this bill to restrain this sale, alleging that the articles named were alterations, repairs, and improvements upon the demised premises, and that they "belonged to and became part of the said premises, by virtue of the terms of the covenant herein set forth and mentioned." After the lease was made, Mr. Weber, the lessee, papered the saloon room, put in a urinal, mended some places in the floor, and asked for consent (under the provisions in the lease that no alterations should be made without consent) to build an additional room for a pool room in that portion of the yard demised to him. No response was made by the lessor, and the tenant erected this additional room without any consent. These items would hardly be deemed alterations, as they left the original premises unchanged as they found them; but they were added to those premises in a permanent manner, and were therefore more in the nature of improvements. No question has been raised as to these, and they have no other relation to the dispute than the claim that the conduct of the tenant in permanently attaching these things to the realty was in recognition and satisfaction of the agreement to leave the improvements upon the premises, and in contrast with his action relative to the articles in dispute, which he mortgaged as chattels, and which, it is insisted, never were attached to, nor Intended to be part of, the demised premises.

Gilbert & Atkinson, for complainant.

John G. Horner and John T. Van Cleef, for defendant Trenton Brewing Co.

GREY, V. C. (after stating the facts). It appears to be undisputed that, coincidently with the change from an agreement to lease the bars and cabinet work to the mortgagors to the making of an absolute sale to them for cash, there was also an arrangement that the whole or a considerable part of the purchase money should be advanced by the defendant the Trenton Brewing Company, which it was agreed should be secured by a mortgage upon the articles sold to the mortgagors. This proposition was, indeed, the occasion of the change from the plan to lease to that finally adopted, —of an absolute sale; and the Trenton Brewing Company's money was so obtained and used without any knowledge on its part that the lease from the complainant contained the provision on which she based her claim. The money of the Trenton Brewing Company was thus made the means' whereby the title to those articles was obtained to be put in the mortgagors, and the first object in putting this title in them seems to have been to enable them to secure the payment of the Trenton Brewing Company's money by making the chattel mortgage in question. The mortgagors were substantially in the position of those to whom a title is given upon an understanding that it shall be disposed of in a certain manner. Their interest is, as to the thing agreed to be done, merely a transitory holding, and is not subject to the charges which ordinarily attend upon the vesting of title to property. Even in the law courts a transitory seisin will not support a right to dower in the wife of the grantee. Where the grantee takes a conveyance in fee, and at the same time mortgages the land to secure the purchase money, in whole or in part, to the grantor, or to some other person, dower cannot be claimed against the mortgage. Griggs v. Smith, 2 N. J. Law, 23. So, where a mechanic erects a building on land by contract with a person having a covenant for its conveyance, and the covenantee afterwards receives a deed, but at the same time mortgages it to a third person, who advanced the purchase money, it is held that no mechanic's lien attaches. Thaxter v. Williams, 14 Pick. 54; Macintosh v. Thurston, 25 N. J. Eq. 242. There...