Cleaveland v. Gabriel

• Decision Date: 04 April 1962
• Citation: 180 A.2d 749,149 Conn. 388
• Court: Connecticut Supreme Court
• Parties: Benjamin F. CLEAVELAND v. Harriette S. GABRIEL. Supreme Court of Errors of Connecticut

Page 749

180 A.2d 749

149 Conn. 388

Benjamin F. CLEAVELAND v. Harriette S. GABRIEL.

Supreme Court of Errors of Connecticut.

April 4, 1962.

Edward J. Daly, Jr., Hartford, with whom, on the brief, was Catherine G. Roraback, New Haven, for appellant (defendant).

William Ford, Salisbury, for appellee (plaintiff).

Before BALDWIN, C. J., KING and MURPHY, JJ., and ALCORN and MacDONALD, Superior Court Judges.

MacDONALD, Associate Justice.

The plaintiff sued the defendant to recover the price of certain items of farm machinery and equipment sold to her at a public auction held on April 8, 1959, on the Cleaveland farm in Salisbury. At that time the farm was owned by the defendant and was occupied and operated by the plaintiff as the defendant's lessee. The plaintiff recovered a judgment for $6233.56, from which the defendant has appealed.

With one exception, the defendant has neither briefed nor argued the assignments of error directed to correction of the finding and the rulings on evidence. These assignments are therefore considered as having been abandoned. Martino v. Grace-New Haven Community Hospital, 146 Conn. 735, 736, 148 A.2d 259; Maltbie, Conn.App.Proc. § 327. The one correction sought cannot be made, as will later appear. This leaves only the assignments which deal with the two principal conclusions reached by the court.

The finding discloses that the items which are the subject of this action were purchased by the plaintiff from his father in a transaction evidenced by a bill of sale to the plaintiff and by a chattel mortgage from the plaintiff to the Farmers Production Credit Association. Both were filed on November 7, 1956, in the personal property records of the town of Salisbury. On July 15, 1957, the plaintiff's parents, Paul B. and Gladys T. Cleaveland, conveyed Cleaveland farm by warranty deed to the defendant, who simultaneously entered into a lease with the plaintiff under which he occupied and operated that farm from July 15, 1957, to April 15, 1959. During this period the defendant had in her employ A. B. Riddell, who acted as, and was held out by the defendant to the public and to the plaintiff in particular as, general manager of her affairs and property, including the farm leased. Immediately prior to the auction, Riddell, acting in behalf of the defendant, was negotiating a lease of the farm to Francis J. Gomez, who informed both Riddell and the defendant that he would not lease it unless the specific items of equipment involved in this action were left on the farm and were included in the lease. On April 8, 1959, the plaintiff offered for sale at the auction certain machinery and equipment used by him in the operation of the farm, including the items in controversy. The defendant did not attend the auction, but Riddell did. He requested Bert H. Pipa to bid in these items on behalf of the defendant. Pipa did so and submitted the successful bids for each of the items. At the close of the auction, the defendant failed to pay for the equipment thus bid in by Pipa at Riddell's request and since then has refused to pay for it.

The first issue pursued by the defendant is her claim that the items of equipment involved here were, at the time of the auction sale, already her own property and that the court erred in finding that the plaintiff was the owner and in failing to find that the items were annexed to the realty in such a way as to be part thereof and therefore, by operation of law, the defendant's property. In support of this claim, she relies strongly upon the manner in which some of the items of equipment were installed--notably, the barn cleaner, which, although itself unfastened, operated on a mechanism bolted to the floor; the water heater, which was connected with the water system; the bulk milk tank, which, although too large to remove without taking off and replacing a door and casing, was not bolted to the floor; the pipeline of the milking system, which ran at some points through holes cut in the walls; and a milker pump, motor and control box in the milking system, the control box being screwed into the wall and connected with the electrical system. On the basis of the facts, the defendant argues that these items became a part of the real property when they were installed and that title to them vested in her when she purchased the farm.

Ordinarily, if not invariably, the character of personal property attached to realty is to be determined as of the date when the property is attached. Giuliano Construction Co. v. Simmons, 147 Conn. 441, 443, 162 A.2d 511, 512; Lesser v. Bridgeport-City Trust Co., 124 Conn. 59, 63, 198 A. 252, 123 A.L.R. 687. For it to acquire the character of a fixture, it is essential that 'a permanent accession to the freehold was intended to be made by the annexation.' Capen v. Peckham, 35 Conn. 88, 94; Stone v. Rosenfield, 141 Conn. 188, 192, 104 A.2d 545, 512. As we recently stated in Giuliano Construction Co. v. Simmons, supra, '[w]hether a permanent accession to the freehold was intended is to be determined from a consideration of all the facts, including the character of the annexation, the nature and adaptation of the article annexed to the used and purposes to which the land was appropriated at the time of the annexation, and the relation of the annexer to the property.' Since some of the equipment here was physically attached to the barn, in one way or another, and was adapted primarily to use in a barn, there was some objective indication of an intention to annex the equipment to the barn. The finding, however, fails to disclose the identity of the annexer or the circumstances under which the annexation was made, and this gives rise to a consideration of the question of the burden of proof.

In actions to recover the price of goods sold and delivered, the burden is on the defendant to prove matters of defense generally and, more specifically, to prove the want of title in the plaintiff. Bradley v. Gulf States Creosoting Co., 209 Miss. 747, 749, 48 So.2d 363; 78 C.J.S. Sales § 451, pp. 90, 91; 77 C.J.S. Sales § 365, p. 1283. Here, the sale took...