Blackwell Printing Co. v. Blackwell-Wielandy Co.

• Decision Date: 14 April 1969
• Docket Number: BLACKWELL-WIELANDY,No. 53623,No. 1,53623,1
• Citation: 440 S.W.2d 433
• Parties: BLACKWELL PRINTING COMPANY, Appellant, v.COMPANY, Respondent
• Court: Missouri Supreme Court

Page 433

440 S.W.2d 433

BLACKWELL PRINTING COMPANY, Appellant, v. BLACKWELL-WIELANDY COMPANY, Respondent.

No. 53623.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

Lon Hocker, St. Louis, for plaintiff-appellant; Hocker, Goodwin & MacGreevy, St. Louis, of counsel.

Norris H. Allen, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for defendant-respondent.

HOUSER, Commissioner.

Action by Blackwell Printing Company, grantee in a warranty deed conveying a building located in the 1600 Block of Locust Street in St. Louis, against Blackwell-Wielandy Company, a tenant in the building since 1919, for damages claimed to have been suffered by plaintiff as a result of the alleged unlawful removal by defendant, during its occupancy of the building, of a ventilating system, two conveyor systems and two wash basins installed in the basement of the building. A trial jury returned a verdict for plaintiff for $20,000 damages and $4,800 interest. The trial court set aside the verdict and granted defendant a new trial for the reason, among others, that plaintiff failed to introduce sufficient proof of the value of the items removed from the premises. Plaintiff has appealed, claiming that no new trial should have been awarded and urging reinstatement of the verdict. Defendant, joining issue on the sufficiency of the proof of damages, goes further and in Point II of its brief seeks to raise the question whether plaintiff is entitled to any recovery whatever, as follows (omitting references to exhibits and transcript pages and citations of authority):

'II.

'(A) The verdict should have been set aside for the additional reason that under the facts and the law plaintiff could not recover damages for the conveyor system because:

'(1) The evidence shows this was a trade fixture and as such is removable;

'(2) It was agreed by the Realty Company and defendant (the tenant) that it belonged to the tenant;

'(3) This was made known to the purchaser;

'(4) The deed properly omitted transfer of 'fixtures' which the seller couldn't transfer because it didn't own them, as plaintiff well knew;

'(5) It was removed by the tenant (defendant) while a tenant of plaintiff.

'(B) With regard to the Bradley washer and the ventilating fan and duct work, the sales contract specifically put plaintiff on notice that the seller only agreed to sell 'articles provided for tenant use' 'not owned by Blackwell-Wielandy Company.'

'(a) Such articles excluded 'ventilating and exhaust fans,' 'plumbing equipment and fixtures."

Point II, if meritorious, is dispositive of the case in its entirety, so we consider it first.

Preliminarily, plaintiff-appellant questions the sufficiency of Point II of defendant-respondent's brief to comply with the requirements of Civil Rule 83.05(e), V.A.M.R. We agree that Point II (B) does not briefly and concisely state what actions or rulings of the court are claimed to be erroneous or why it is contended the court was wrong in any action or ruling sought to be reviewed, and for failure to comply with the rule we will not notice Point II (B).

Point II (A), however, considered in conjunction with respondent's statement near the close of the argument portion of its brief that the motion for a directed verdict should have been sustained, is sufficient to present for review the question of the right of plaintiff to recover damages for the removal of the conveyor systems.

Plaintiff alleged in its petition that it is the sole owner and entitled to the possession of the two conveyor systems. The burden was on plaintiff to establish its ownership. In an effort to sustain this burden plaintiff introduced in evidence the lease dated September 13, 1960 between Blackwell-Wielandy Realty Company and defendant; the sales contract by the terms of which the realty company agreed to sell to Hartley B. Comfort or assignee the building, grounds, etc.; the surrender of lease executed by defendant; the general warranty deed from the realty company conveying the building, etc. to Mr. Comfort's assignee, Blackwell Printing Company, plaintiff herein; a letter from defendant to Mr. Comfort and his reply; and the testimony of the operator of Acme Erectors, Inc., that the conveyors were anchored to the floor by drilling holes in the floor at approximately 10-foot intervals, and putting bolts known as AJ anchors in the holes; that conveyors were affixed to the floor on both rails; that there was a hole cut through the floor through which the conveyor went, and the floor was supported by steel I-beams.

This evidence was not sufficient to make a submissible case of ownership of the conveyor systems by plaintiff or its predecessor in title, the realty company. Plaintiff did not show that the realty company acquired title to and the right to sell the conveyor systems by having purchased, installed or paid for them in the first instance (they were bought, installed and paid for by the defendant) or that the realty company or this plaintiff acquired them by purchase or abandonment after their installation by another, or by operation of the law of fixtures. Every legitimate inference to be drawn from plaintiff's evidence on the question leads to the conclusion that the realty company never owned or claimed to own the conveyor systems and that during the negotiations plaintiff's assignor, Mr. Comfort, was informed by the realty company's representatives that this defendant, not the realty company, owned them. Neither the 1960 lease, nor the sales contract, nor the surrender of lease nor the general warranty deed supports an inference that the parties treated the conveyor systems as property of the realty company or that they were sold to plaintiff's assignor along with the building. The inclusion at the end of the legal description of the premises in the 1960 lease of the language 'together with all of the improvements and fixtures including elevators on said described parcel of ground, or which may hereafter be erected thereon, and the appurtenances thereto belonging' is a catch-all description evidencing the intention of the landlord to include in the demise all fixtures, etc. which landlord owned and had the right to lease, but may not be construed as an acknowledgment by the parties that the conveyor systems were considered by the parties as the property of the landlord. Instead of supporting plaintiff's case the sales contract provides convincing evidence that the conveyors were not the property of the seller and that the seller was not purporting to sell them but rather was specifically reserving them for removal by their true owner, this defendant. By this document the parties specifically excluded from the sale all fixtures and equipment owned by defendant, impliedly recognized that some fixtures and equipment on the premises were the property of defendant and specifically recognized the right of defendant to remove the conveyors before the closing date, December 17, 1963. A printed form of sales contract was used. The blank spaces were filled in by typewriting and handwriting. The printed form contained a list of the typical appurtenances, fixtures and equipment ordinarily included in such a sales contract, together with a guarantee of ownership by seller. This printed form was modified by seller's attorney striking out the words 'which seller guarantees to own.' It was further modified in ink handwriting by adding the words 'not owned by Blackwell-Wielandy Company' at the end of the list of fixtures, etc. purported to be sold and immediately after the words 'all articles now provided for tenant use.' On the reverse side the following was typed: 'Purchaser further agrees that either or both of two power conveyors now located on the north side of the building located on the premises, said conveyors extending from the present shipping room in the basement to the loading dock area on the first floor, may be removed by Blackwell-Wielandy Company, the present occupant of the premises, before the closing date. Any damage to structure resulting from said removal shall be repaired at no expense to purchaser.' Both parties signatory (the realty company, Seller, by Mr. Campbell Alexander, its president, and Hartley B. Comfort, Purchaser) initialed these modifications, thereby indicating their understanding and approval. Of course, even if the parties to that contract had actually agreed upon the sale and purchase of the conveyor systems, such an agreement would not have been effective to transfer title unless the seller had title thereto; if the title was in defendant such a contract would not have been binding on it.

Plaintiff argues that defendant corporation was 'quite aware of the terms of the contract which was agreed to with the Realty Company, and accepted the provision for the conveyors which had been made for its benefit'; that the defendant and the realty corporations were controlled by the same group of stockholders, more than half in interest of whom owned stock in both corporations; that there were common directors and officers; and that the two corporations 'were kept in close contact.' Plaintiff apparently takes the position that defendant was the alter ego of the realty company or vice versa. We are not so persuaded. '* * * (A) corporation is ordinarily an entity, separate and apart from its stockholders, and mere ownership of all the stock of one corporation by another, and the identity of officers of one with officers of another, are not alone sufficient to create identity of corporate interest between the two companies or to create the relation of principal and agent or to create a representative or fiduciary relationship between the two. * * *' Garrett v. Southern Ry. Co., 6 Cir., 278 F.2d 424, 425, cited with approval in Turpin v. Chicago, Burlington & Quincy R. Co., Mo.Sup., 403 S.W.2d 233(3). Something more than majority stock control is required. There must be such domination and control 'that the controlled...