Baringer v. Evenson

• Decision Date: 30 January 1906
• Citation: 127 Wis. 36,106 N.W. 801
• Parties: BARINGER v. EVENSON.
• Court: Wisconsin Supreme Court

127 Wis. 36

106 N.W. 801

BARINGER

v.EVENSON.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Sauk County; E. W. Helms, Judge.

Action by Fred Baringer against C. H. Evenson. From a judgment for defendant, plaintiff appeals. Reversed.

This action was brought to recover $350 damages for the conversion of certain articles which the plaintiff claims were fixtures in the building and premises described and owned by him and which had been occupied by the defendant as a drug store for many years, and which articles, the defendant claims, were not fixtures, but were personal property and belonged to him. It appears, and is undisputed, that one William H. Hopkins was the owner in fee of the building and premises described, as early as 1886; that in that year he leased the store building in question to one Charles Whitman to be used by him as a drug store, etc.; that Charles Whitman continued to occupy said building as a drug store and, as the tenant of Hopkins until about September 1, 1889, when J. H. Whitman purchased said stock of drugs from Charles Whitman, and continued to occupy said building as a drug store as the tenant of Hopkins from that time until September, 1890, when the defendant herein purchased said stock of drugs from J. H. Whitman and continued such occupancy of said building as a drug store as the tenant of Hopkins under a verbal lease from that time down to April 1, 1895, when Hopkins gave to the defendant a written lease of the premises described, duly executed under their hands and seals, with the privilege of renting the rooms on the second floor for office purposes, to have and to hold the same for the term of five years from April 1, 1895, at the rate of $750 per annum, payable in installments of $62.50 monthly in advance--to be used for the purpose of a drug store and offices; that the defendant therein agreed to pay such rent and keep the same in good repair, and to quit and deliver up possession thereof peaceably and quietly to said Hopkins or his legal representatives at the expiration of said term in as good condition as when received, the natural wear and reasonable use thereof and destruction by the elements and fire excepted; that Hopkins or his representatives might at all times re-enter the premises for inspection and making of such alterations and changes therein as he might deem advisable; that if the lessee made any alteration in the premises without the consent of the lessor, then he was liable to be expelled therefrom forthwith; that, in case the premises should be sold during the term, then the lessor was to have the optional right to terminate and cancel the lease by giving notice thereof to the lessee, who should thereupon vacate the premises; that if the lessee should use the premises contrary to the conditions of the lease or injure the same, then the lessor or his legal representatives would be entitled to immediate possession and have the right to recover all damages sustained by the acts of the lessee, and the covenants therein contained were thereby made mutually binding on the parties, their representatives, executors, administrators, and assigns. That lease by its terms expired April 1, 1900. May 4, 1901, the plaintiff purchased the premises from Hopkins and received a deed thereof from him; that the defendant without any other written lease continued to occupy the premises as such tenant under Hopkins, down to the time of such purchase by the plaintiff and from that time down to about April 1, 1904, as tenant under the plaintiff, when he removed therefrom, as alleged in the complaint, 20 glass doors, certain shelving, 190 drawer pulls, 10 panes of glass, 3 screen doors, 1 transom screen, and 2 sections of counters, of the alleged aggregate value of $106, and all of which the complaint alleges were in the building, and attached thereto at the time the premises were so occupied by J. H. Whitman in 1890; and also that one furnace was placed in the building by the defendant, and attached thereto in the usual manner by means of air ducts constructed with it and connected with the other parts of the building, and said furnace rested upon a brick foundation in the cellar of the building and built for that special purpose and no other. To the complaint alleging such facts, in effect, the defendant answered by way of admissions, denials, and counter allegations, to the effect that he was the absolute owner of the several articles mentioned, and that the same, with the exception of the furnace had been in his continuous possession and control from September, 1890, until the time of drawing the answer, and the furnace from the time it was put into the building by the defendant in the fall of 1898. At the close of the testimony, the court directed a verdict of no cause of action in favor of the defendant. From the judgment entered upon that verdict with costs, the plaintiff brings this appeal.Grotophorst, Evans & Thomas, for appellant.

Bentley & Kelley, for respondent.

CASSODAY, C. J. (after stating the facts).

The important question presented is whether the evidence was sufficient to take the case to the jury on the question whether any of the articles mentioned were fixtures, and hence a part of the realty and the property of the plaintiff. It is conceded that all the articles mentioned, except the furnace, were in the store building when the same was occupied by the defendant's immediate predecessor, J. H. Whitman, in 1890, and continued in the store from that time down to the time they were removed by the defendant about April 1, 1904, and that the furnace was placed in the building by the defendant in the fall of 1898 and remained there until it was removed by the defendant about April 1, 1904. The defendant, as an adverse witness, testified to the effect that the 20 glass doors which he removed were fastened by means of hinges and screws to the standard in front of the shelving in the room; that there were two doors to a set--10 double doors, 20 single doors; that the hinges were screwed onto the upright strip in front of a standard between the shelving, composed of boards, and attached to and supported it; that the shelving he removed was not nailed to the building proper, but was nailed to cleats, and the cleats were screwed to the building; that he did not place the shelving in the building; that it was there when he went into possession in 1890; that he removed such of the 16 dozen drawer pulls as had not previously been destroyed; that such drawer pulls were fastened to the drawers, and each consisted of a piece of metal projecting out probably an inch from the drawer, with a place to put the hand underneath, and had an opening in front for a glass label; that those pulls were fastened to the drawers with screws and constituted a part of the fixtures, and were there when Whitman occupied; that he removed some common panes of glass which had been set in places or panels cut out of the counter for the purpose, the glass taking the place of the panels; that he left the counter, but took the glass; that he did not know whether the counter was fastened to the building or the floor; that he removed three screen doors and a transom screen, which were fastened to the building, the same as any other ordinary screen door is attached, with regular butts; there was a strip attached to the building, and then the door attached to the strip; that they were made expressly for the doorways; that he removed one section of counter from the building, and a prescription case, also, that had a counter attached, both of which were there before he occupied; neither was attached to the floor in any way, but simply rested thereon; that he removed the portable furnace which he placed in the building in the fall of 1898; that the furnace had a galvanized jacket and sat on some bricks that rested on the ground; that there was one hot-air register and a square pipe went right straight up to it and lapped over onto the rim; that there was a cold-air box extending from the front of the store to the bottom of the furnace; that when the furnace was put in he had a hole cut in the floor of the building to put in the register and the cold-air duct, and cut a hole in the wall in order to let the cold-air duct through; that he removed the hot-air pipe and the cold-air duct, but not the register; that the furnace was in the basement, and the hot air was conducted through the opening in the floor of the store.

Without reference to other evidence on the part of the plaintiff, we are clearly of the opinion that the court improperly directed a verdict in favor of the defendant. The case presents two questions for consideration: One is as to the right of the defendant to remove from the building the furnace which he put in the building 5 1/2 years prior to such removal. This court has repeatedly declared that, in determining whether art...