Bigelow Co. of New Haven v. Heintze

• Decision Date: 29 November 1890
• Citation: 53 N.J.L. 69,21 A. 109
• Parties: BIGELOW CO. OF NEW HAVEN v. HEINTZE.
• Court: New Jersey Supreme Court

21 A. 109

53 N.J.L. 69

BIGELOW CO. OF NEW HAVEN

v. HEINTZE.

Supreme Court of New Jersey.

Nov. 29, 1890.

(Syllabus by the Court.)

On rule to show cause.

This was an action of trover to recover damages for the conversion of a Hogel drying machine, with counter-shafts and pulleys. Garrett Bros., the owners of a factory in Hudson county, and engaged in manufacturing fertilizers, on the 10th of December, 1886, ordered of the Bigelow Company the dryer in question under the following contract: "Jersey City, N. J., Dec. 16, 1886. The Bigelow Co., New Haven, Conn.: You will please manufacture and ship to the undersigned, at Jersey City, N. J., one Hogel dryer, complete, with counter-shafts and pulleys. In consideration of which the undersigned agree to pay, with exchange, besides the freight and warehouse charges, the sum of seventeen hundred and forty-five ($1,745.00) dollars; payment to be made as follows, less the freight, $32.00: Note dated Feb. 12, 1886, payable 3 mos. after date, for $856.00; note dated Feb. 12, 1886, payable 4 mos. after date, for $857.00. It is agreed that the above specified articles are to remain the property of said Bigelow Co., and subject to their order, until both of said notes are fully paid, and that, upon failure to pay either of said notes at maturity, said Bigelow Co. may, without impairing the validity or said notes, retake possession of said articles; and the undersigned hereby agree to return and deliver the same to the said Bigelow Co. in good order and condition, and in that event the payment made by the undersigned is to be applied by said Bigelow Co. in satisfaction for the use of said article up to the time of such failure to pay. And it is further agreed that the Bigelow Co., after resuming possession of said articles, may, if they see fit, sell the same, after ten days' notice to the undersigned, at public auction, and apply the proceeds to the payment of such said notes as may yet remain unpaid, rendering the overplus, if any, after discharging all cost and expenses of sale, to the undersigned, whose liability on said note for any deficiency shall still continue. Garrett Bros." The machine was delivered and set up in the factory. Notes were given for the purchase money, and at maturity protested for non-payment. On the 9th of June, 1887, an execution was put in the hands of the defendant, as sheriff of the county of Hudson, at the suit of Robert O. Babbitt against Garrett Bros., under which he levied on the lands on which the factory was situated, and also upon personal property of the defendants. In the inventory of personal property the dryer in question was mentioned as personal property levied on. On the 24th of June, 1887, the Bigelow Company, for the benefit of one Malcomson, to whom the contract of December 16, 1886, had been assigned, served on the defendant a demand in writing for the delivery of the property. After the demand was served, and before suit brought, the defendant erased the dryer from the inventory of personal property; but on June 30th, in response to a letter of the plaintiffs' attorney, inquiring for information whether the defendant would or would not deliver up the property, the defendant replied by letter, "By direction of counsel, we will hold the dryer." Suit was commenced July 2d, by summons returnable July 12th. On July 9th the defendant wrote to plaintiffs' attorneys as follows: "In the matter of the suit brought against me by you, as attorney for Alfred S. Malcomson, I desire to say that that dryer which is the subject of controversy is claimed to belong to the real estate, and my levy on it covers that, and some of the other fixed machinery, as parts of the freehold only. When you demanded of me that I should deliver to you the said dryer, I wrote you I could not do so; my reason being that it is a physical impossibility, as the dryer weighs, I am informed, some eleven tons, and is so fixed in the building that the building would probably have to be torn down to get it out. I think you have taken rather a peculiar course in suing me, as an action of replevin would have raised all the questions, and would have brought to the front the people interested in the real estate, who claim the dryer, under their levies and mortgages, as part of the real estate, especially as you were informed by Mr. Babbitt that it was claimed to be real estate, and that the gentleman holding the purchase-money mortgage claimed that the dryer was annexed to the freehold. However I have to say that, so far as I am concerned, while I cannot actually give you possession for the reason aforesaid, yet I hereby notify you that I have no claim on the dryer, except so far as my levy on the real estate and premises in which the same is situated maybe construed as giving alien. If the dryer is part of the real estate, my levy covers it; if it is not, the levy does not cover it; so I am unable to see how you can settle the question you desire to raise in this suit. I however recognize the fact that you may have been misled by my former letter into the belief that I claimed my levy covered the dryer as personal property, and I therefore hand you $15 to cover your costs of suit up to this time. Ferdinand Heintze."

The trial judge directed the jury to find a verdict for the plaintiffs for the market value of the dryer, and granted a rule to show cause why the verdict should not be set aside.

Argued before the Chief Justice and Depue and Scudder, JJ.

Alward & Parrot, for plaintiffs.

Babbitt & Lawrence, for defendant.

DEPUE, J. (after stating the facts as above.) The transaction between Garrett Bros, and the Bigelow Company under the contract of December 16, 1886, was not simply an agreement for the possession of the property under an executory contract to purchase on payment of the stipulated price. The notes given by Garrett Bros. for the purchase money were unconditional promises to pay. The clause in the contract providing for the redelivery of possession and the sale of the property by the Bigelow Company as the means of realizing the unpaid purchase money, rendering the surplus, if any, to Garrett Bros. after payment of the notes and the cost and expenses of the sale, and retaining the liability of Garrett Bros. for the deficiency, indicates that the intention was to transfer to Garrett Bros., if not property, at least some proprietary interest in the machine. Under this arrangement, the machine was set up in the factory. The proof is that the machine weighs seven tons, and is secured in the factory in a substantial manner. There is also evidence that part of the building in which it was placed was erected around the dryer after it was put in, and that it would be necessary to take out the side of the building to remove the machine. Whether, under the circumstances, the machine became part of the realty, we do not propose to decide at this time. The proper parties (the owner of the fee and mortgagees) are not here to make a decision on that subject a finality. It is sufficient for present purposes to say that it is a debatable question whether the property was not so annexed to the realty as to be embraced in the sheriff's levy on the lands.

We propose to consider only the propriety of the judge's direction of a verdict for the plaintiffs, assuming that the dryer was a fixture that might be removable, and the measure of damages adopted. In trover conversion is the gist of the action. The plaintiff must prove property in himself, and a wrongful conversion. 1 Chit. Pl. 146; 9 Bac. Abr. 629, tit. "Trover." The defendant had no actual possession of the machine. While it remained on his inventory as personal property, it was left undisturbed on the premises as it had been set up. To furnish the evidence necessary to show a conversion the plaintiff relied on demand and refusal. Demand and refusal do not, of themselves, amount to a conversion. They are only the evidence on which a jury may find a conversion. If, on special verdict, the jury finds only demand and refusal, without expressly finding the conversion, the court can give no judgment upon it. Case of Chancellor, etc., of the University of Oxford, 10 Coke, 56, 57; Wilbraham v. Snow, 2 Saund. 476. The demand must be made at a time and place, and under such circumstances, as that the defendant is able to comply with it if he is disposed; and the refusal must be wrongful. If the refusal be qualified, or there be a condition annexed to it, the question then will be whether it be a reasonable one. Wilbraham v. Snow, 2 Saund. 47 Ar, and notes; 1 Chit. Pl. 160; Pol. Torts. 291. See, also, Bigelow, Cas. Torts, pp. 394-453, where the subject of conversion is fully discussed. At the time of the service of the demand the defendant had a lien on the machine of a twofold character, or rather in the alternative, either under his levy upon it as personal property, or in virtue of his levy on the real estate. The deputy-sheriff testified that after the service of the demand he called on Babbitt to know what should be done in the matter, and that Babbitt directed him to strike the machine out as personal property; that "we could only hold it as part of the freehold;" and that he struck it out of the inventory of the personal property the next day after service of the demand. On the 27th of June, and again on the 29th, the plaintiffs' attorney wrote to the sheriff, requesting to be informed whether he would comply with the demand. In the last of these letters the attorney writes, requesting information by...