Endler v. State Bank & Trust Co. of Wellston

• Citation: 180 S.W.2d 596,352 Mo. 961
• Decision Date: 02 May 1944
• Docket Number: 38772
• Parties: Marguerite K. Endler, Renee Bradshaw and Marie Mathieson, Appellants, v. State Bank & Trust Company of Wellston, a Corporation
• Court: United States State Supreme Court of Missouri

180 S.W.2d 596

352 Mo. 961

Marguerite K. Endler, Renee Bradshaw and Marie Mathieson, Appellants, v. State Bank & Trust Company of Wellston, a Corporation

No. 38772

Supreme Court of Missouri

May 2, 1944

Rehearing Denied June 5, 1944.

Appeal from Circuit Court of St. Louis County; Hon. Julius R. Nolte Judge.

Affirmed.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford for appellants.

(1) The circuit court below having acquired jurisdiction as a court of equity for one purpose, it had jurisdiction to dispose of every issue that arose below in said cause, without a jury. Hogan v. Continental Bank, 182 Mo. 319, 81 S.W. l.c 77. (2) Where the evidence presented no essential conflicts, the judgment rendered below is a mere legal conclusion. Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616; Eckles v. Ragland, 256 Mo. 424, 165 S.W. 1035. (3) However, since all equity cases are triable de novo in the Supreme Court, that court, while deferring somewhat to any findings below, is not bound by such findings of fact and will reach its own conclusions. Gross v. Byler, 297 S.W. 391. (4) Where the decision below is not sustained by the law and the evidence, the Supreme Court will proceed to make its own findings and judgment as equity and justice require. Uhrig v. Hill-Behan, etc., 110 S.W.2d 412; 5 C.J.S. 1299. (5) Fixtures, even though they might be classified as trade fixtures and even though paid for originally by the tenant, when so firmly attached to the realty that substantial and material damage would be done to the landlord's property in removing them, become the property of the landlord at the end of the leasehold. Powell v. McAshen, 28 Mo. 70; Finney v. Watkins, 30 Mo. 291; 22 Am. Jur. 776; Ambs v. Hill, 10 Mo.App. 108; Taylor v. White, 68 Mo.App. 607; Globe A.S. Co. v. Boester, 95 S.W.2d 825; Graves v. Pierce, 53 Mo. 423; Bank of America v. N.Y. Life, 16 Cal.App. (2d) 719, 61 P.2d 364. (6) This is likewise true where the character of the building would be changed by the removal of the fixture from that for which the building was designed to serve. Then the fixture likewise becomes the property of the landlord. Globe A.S. Co. v. Boester, 95 S.W.2d 825; Realty Imp. Co. v. Anderson, 164 P. 4; Otis Elevator Co. v. Palmetto Const. Co., 237 F. 769; Interstate Trust & Banking Co. v. Warren, 60 F.2d 368; Hanson v. Vose, 175 N.W. 113; Winkle v. Heyman, 185 Iowa 114, 169 N.W. 631; Baker v. McCoy, 198 Ill. 28, 64 N.E. 701. (7) This is likewise true where it was the implied intention of the parties to consider the fixture as a permanent part of the realty. General Motors, etc., v. Farm & Home, 58 S.W.2d 342; San Diego Tr. & Sav. Bank v. San Diego Co., 16 Cal.2d 142, 105 P.2d 94; Kriegler v. Spokane Mech. Assn., 111 Wash. 179, 189 P. 1004; Greenburg v. Dept. of Financial Institution, 11 N.E.2d 1008.

Taylor, Meyer, Shifrin & Willer for respondent.

(1) The facts tried in this case were purely legal, and for a court to retain jurisdiction in a case which started as an equity case equitable rights must be not only averred but proved at the trial of the case before legal rights will be determined. Chicago, R.I. & P.R. Co. v. State Highway Comm., 17 S.W.2d 535; Wimer v. Wagner, 20 S.W.2d 650; Modern Woodmen of America v. Cummins, 268 S.W. 383; England v. Barnes, 70 S.W.2d 69. (2) Where the facts in the lower court are conflicting the appeal court is bound by the finding and judgment of the trial court below. Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616; Kansas City v. Boyer, 202 S.W. 1086. (3) This is not an equity case, but even if it were, this court could not apply the rule contended for by appellants that the case be tried de novo, since the court would be at a loss to do so with the record before it as it is at this time. Bueker v. Aufderheide, 136 S.W.2d 281. (4) As between landlord and tenant, a tenant may remove trade fixtures which were added to the leased premises for the purpose of carrying on the business for which the premises were leased. The intention of the parties is the governing point regardless of the extent of the affixation of the articles to the freehold. Beicher v. Parker, 40 Mo. 118; Finney v. Watkins, 13 Mo. 291; Rogers v. Crow, 40 Mo. 91; Matz v. Miami Club Restaurant, 127 S.W.2d 738; Handlan v. Stifel, 232 S.W. 245; Thomas v. Davis, 76 Mo. 72; Tyler v. White, 68 Mo.App. 607; McLain Investment Co. v. Cunningham, 875 S.W. 605; Bennett v. Taylor, 49 S.W.2d 608; President & Directors of Manhattan Co. v. Mosler Safe Co., 299 N.Y.S. 417; Woods v. Bank of Hayward, 10 Cal.App. 93, 106 P. 730; Inge v. First State Bank, 57 S.W.2d 317. (6) Where a grantor, or person claiming under him, transfers title to property to another, he or those claiming under him are estopped from thereafter asserting that he or they are the owners of such property. White v. Hughes, 88 S.W.2d 268; Bankers Trust Co. v. Maxson, 100 N.J.Eq. 1; Continental Bank & Trust Co. v. Webster Hall Corp., 4 F.Supp. 337; 31 C.J.S., p. 198.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

PER CURIAM

The issue as assigned for determination is whether certain vault doors and a night depository of a bank were removable trade fixtures or a permanent part of the real estate as between landlord and tenant in the circumstances hereinafter narrated. The judgment was for the tenant, State Bank & Trust Company of Wellston, a corporation, and against the owners, Marguerite K. Endler, Renee Bradshaw and Marie Mathieson (hereinafter frequently designated landlord), plaintiffs nisi and appellants here. We have jurisdiction by reason of the amount involved.

At the threshold of the case we inquire into the landlord's contentions, presented in the main brief, that the proceeding was in equity and, having acquired jurisdiction, equity retains it to dispose of every issue arising, without the aid of a jury; and that the proceeding is triable de novo here. The landlord's abstract of the record contains a recital by counsel (not facts of record) that the suit was instituted to enjoin the tenant removing certain fixtures and that before a permanent injunction had been secured, the fixtures had been actually removed, "whereupon the cause was converted into a suit for damages for the removal of said fixtures." There are recitals in the tenant's brief that after the filing of the first petition an application for a temporary restraining order against removal was filed and, upon hearing, granted upon condition the landlord file a $ 5,000 bond; that, upon failure to file the bond, the order was dissolved, and that the tenant removed the trade fixtures here involved. The third amended petition, upon which the case went to trial, was a simple action in conversion for damages. No relief in equity was asked. The tenant's pleading embraced a general denial, affirmative defenses, and a counterclaim. The reply was a general denial. At the time the case went to trial there was no attempt to state a cause of action in nor any prayer for equitable relief of any nature in any of the pleadings. We have said and good practice requires that "equitable rights must be both averred and proved before purely legal rights will be determined by a court of equity." Chicago, R.I. & P. Ry. Co. v. State Highway Comm., 322 Mo. 419, 434, 17 S.W. 2d 535, 541[7]. Consult England v. Barnes (Mo. App.), 70 S.W. 2d 69, 71[3]; Modern Woodmen of Am. v. Cummins, 2168 Mo.App. 404, 410, 268 S.W. 383, 385 [2]; 30 C.J.S., p. 427, Sec. 73; p. 432, n. 73; p. 426, n. 28. We hold the action sounds in tort for conversion, and is not a suit in equity.

The landlord's assertion, on the theory the evidence presented no essential conflicts, that the judgment nisi was a mere legal conclusion (citing Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616; Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035), has no application because the facts are not agreed. Facts essential to the landlord's case are disputed by the tenant and the landlord's brief recognizes factual disputes exist. See the cases cited. The landlord, being the plaintiff and having the burden of proof, is hard put to stand, as he does, on the oral testimony adduced; because, technically, the contention is that in this action at law there is no evidence supporting the verdict for the defendant. The sufficiency of oral evidence to sustain a verdict in defendant's favor is not an open question upon review in a law action. If a defendant offers no evidence whatsoever, the credibility of plaintiff's witnesses remains a factual issue for the jury or the court sitting as a jury. Cluck v. Abe, 328 Mo. 81, 84 [1-4], 40 S.W. 2d 558, 559 [1-5]; McClellan v. St. Louis (Mo. App.), 170 S.W. 2d 131, 134 [8], citing cases.

What has been said disposes, we think, of this review. But whether it does or not, in every instance wherein there exists a conflict in the testimony on a determinative factual issue, the jury, or the court sitting as a jury, of necessity believes or rejects the whole or part or none of the testimony of a given witness thereon as it believes the same to be true or false in the light of all the testimony, facts, and circumstances in the case. The instant trial was to the court, sitting as a jury, and we think there was substantial evidence sustaining the court's findings in the tenant-defendant's favor; and briefly thereof:

The case involves the rights of the privies of the original parties to trade fixtures installed by a tenant on the real estate of his landlord; the trend in such controversies being to favor the rights of the tenant. ^[*] We do not construe General Mtrs. Accept. Corp. v. Farm & Home S. & L Ass'n, 227 Mo. 832, 838, 58 S.W. 338, 342[2], to constitute a holding, as we understand the landlord (relying upon quoted observations...