Commercial Finance Co. v. Brooksville Hotel Co.
| Decision Date | 17 September 1929 |
| Citation | 123 So. 814,98 Fla. 410 |
| Parties | COMMERCIAL FINANCE CO. v. BROOKSVILLE HOTEL CO. |
| Court | Florida Supreme Court |
Suit by the Brooksville Hotel Company against the Commercial Finance Company and another. From an order granting a temporary injunction and an order denying motion for dissolution of temporary injunction, respondent named appeals.
Orders reversed.
Syllabus by the Court
Refrigerator installed in hotel sold under conditional sales contract held not a fixture, and did not constitute part of freehold. Where refrigerator was sold to hotel company under conditional sales contract providing that title should remain in seller until purchase price was fully paid, and seller was entitled on certain contingencies to repossess refrigerator refrigerator was not a fixture, and did not constitute part of freehold.
Failure to pay installments due on refrigerator sold under conditional sales contract held to give seller's assignee right to repossess refrigerator by replevin. Where refrigerator was sold under conditional sales contract providing that title should remain in seller until purchase price was fully paid in cash, and seller was entitled on certain contingencies to repossess refrigerator, failure of buyer to pay installments due held to give assignee of seller right to repossess refrigerator by action of replevin.
Refrigerator remaining personal property after installation, defaulting conditional buyer was not entitled to restrain recapture of machine by action of replevin. Refrigerator, sold under conditional sales contract providing that title should remain in seller until purchase price was fully paid, and entitling seller on certain contingencies to reposses refrigerator, not having become a fixture on land, did not lose its character as personal property, and ownership never passed to buyer who failed to complete payments, and therefore buyer could not restrain recapture of machine, in action of replevin.
Character of annexation, appropriateness to use in connection with realty, and intention of parties must be considered in determining whether article is fixture. To determine whether article annexed to soil is fixture, regard must be had to actual annexation to realty or something appurtenant thereto appropriateness to use or purpose of part of realty with which it is connected, and intention of party making annexation that it shall be permanent accession to freehold.
Intention of party annexing article to realty is determined from nature of article annexed, relation of such party, character of annexation, and purpose or use. In considering whether article annexed to realty is fixture, intention of party in making annexation is determined from nature of article annexed, relation of party making annexation, structure and mode of annexation, and purpose or use for which annexation has been made.
Articles of furniture, though attached to buildings, are not fixtures. Articles of furniture are not fixtures, though attached to building.
Appeal from Circuit Court, Hernando County; Fred L. Stringer, judge.
Geo. C. Martin, of Brooksville, and H. L. Anderson, of Jacksonville, for appellant.
J. C. Davant, of Clearwater, for appellee.
The Brooksville Hotel Company, a corporation doing business in the city of Brooksville, where it owned and operated a hotel, entered into an executory contract of sale with the Refrigeration Sales Company under which the Refrigeration Company agreed to sell, and the hotel company agreed to buy, a refrigerator to be used by the purchaser at the 'Tangering Hotel until paid for.' The price to be paid for the refrigerator cannot be determined from the terms of the contract. The bill alleges the sum to be $2,183, all of which has been paid except the sum of $163.
The contract provided that the refrigerator was to be delivered by the seller to a common carrier at Jacksonville; that the title to it should remain in the seller until the 'purchase indebtedness is fully paid in cash.' It provided that in certain contingencies, among which were the removal of the refrigerator from the place designated for its use or the failure to pay any of the installments to become due under the contract, the seller should have the option forthwith of repossessing the 'said goods and chattels,' retaining as rent, depreciation, and for liquidated damages any payments theretofore made.
The contract was assigned to the Commer cial Finance Company, a corporation to whom the hotel company paid installments until there was left an unpaid balance of $163. It then sued out a writ of replevin to obtain possession of the refrigerator. A writ came to the hands of the sheriff of Hernando county, and the hotel company commenced its suit against the finance company and the sheriff to restrain the former by injunction from further prosecuting its action of replevin and the sheriff from taking possession of the refrigerator under the writ.
The proposition upon which the bill rests is that upon the installation of the refrigerator, which was a 'Twitty Portable Cork & Cement Refrigerator,' with 'three freezing compartments and all necessary pipe & fittings,' it became fixed to the freehold, and lost its quality of personal property.
The bill alleges that the sellers installed the refrigerating plant, and in doing so built the same into the hotel, erected the plant upon a concrete base, and connected the necessary pipes thereto; that it cannot be removed 'without destroying the walls of said building and tearing out certain portions thereof.' The bill was sworn to by R. W. Heald, who is not described as complainant, attorney, agent, or officer of the complainant.
A temporary injunction was granted without notice. A demurrer to the bill was overruled. The defendant answered, and then moved to dissolve the injunction, which motion was denied, and the defendant appealed from the order granting a temporary injunction and the order denying the motion for a dissolution of the same.
The bill was without equity. The refrigerator did not constitute part of the freehold. Its character as personal property was not lost by the installation of it in the building. The title was in the complainant who...
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