Barbour Plumbing, Heating & Electric Co. v. Ewing

• Decision Date: 13 November 1917
• Docket Number: 6 Div. 31
• Citation: 77 So. 430,16 Ala.App. 280
• Parties: BARBOUR PLUMBING, HEATING & ELECTRIC CO. v. EWING.
• Court: Alabama Court of Appeals

77 So. 430

16 Ala.App. 280

BARBOUR PLUMBING, HEATING & ELECTRIC CO. v. EWING.

6 Div. 31

Court of Appeals of Alabama

November 13, 1917

Rehearing Denied Dec. 18, 1917

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by I.C. Ewing against the Barbour Plumbing, Heating &amp Electric Company From judgment for plaintiff, defendant appeals. Affirmed.

Certiorari denied 77 So. 763.

This is an action for damages, brought by the appellee against the appellant, for a trespass to realty, and for conversion. From a judgment in favor of plaintiff, the defendant appeals.

The facts necessary to a decision of the questions involved are as follows:

Prior to the acts complained of and set out in the complaint, the appellee had become the owner of two mortgages executed by one Gnassi and wife, the former of whom then held the legal title to the property described in said mortgages. These mortgages conveyed the legal title to the premises in question, and the transfers of the mortgages to the appellee conveyed the legal title to appellee. The debts secured by each of the mortgages was in default, and had been so declared, and the appellee, at the time of the wrongs complained of, was, under these mortgages, vested with the legal title in and to the property, with the right of immediate possession.

There was evidence tending to show that one of these mortgages had been foreclosed at the time of the wrongs complained of, and it was undisputed that the mortgage was foreclosed on the 3d day of the month in which the property was claimed to have been removed from the premises. There was evidence for the appellee tending to show that prior to the execution of one of these mortgages the appellee, acting under a contract with the mortgagor, who was then in possession of the premises using the same as a private hospital or infirmary, had installed in said premises a system of heating, consisting of a boiler, the necessary piping, and some 25 radiators, placed in the various rooms in the building.

The evidence for the appellant tended to show that this steam-heating system was installed on the premises after the execution of both of the mortgages in question. The evidence was without conflict to the effect that after the law day of these mortgages had passed, and after the appellee was vested with the legal title to the property, coupled with the immediate right of possession, the appellant went upon the premises in question, and removed therefrom the boiler and radiators theretofore installed by him. There was evidence for the appellee tending to show that the removal of the boiler and radiators left holes in the floors in the various rooms, and that damage was done to the house in the course of the removal, and by reason thereof.

In installing the plant the boiler was placed on a concrete station in the basement, and pipes were run underneath the floors of the building and up through the floors to the various radiators, which were connected with the pipes. To connect the pipes with the radiators, it was necessary that holes be bored in the floors, which were left there at the time the radiators were removed. The sills or joists on which the floors rested were cut and notched in various places to permit passage of the pipes. There was evidence for the appellee tending to show that the building could not be used for the purposes for which it had been designed without a heating plant, and that this heating plant was the only method used in heating the building. It was also in evidence without conflict that there was a verbal contract between the mortgagor, Gnassi, and the appellant, to the effect that the plant should remain the property of the appellant until fully paid for, that the sale was a conditional one, and that the title was not to vest in the mortgagor until full payment had been made. The evidence was without conflict that, after the completion of the work, the appellant filed in the office of the probate judge of Jefferson...