Fidelity Trust Co. v. State

• Decision Date: 21 November 1951
• Docket Number: No. 7711,7711
• Citation: 72 Idaho 137,237 P.2d 1058
• Parties: FIDELITY TRUST CO. v. STATE et al. COEUR D'ALENE PRESS CO. v. PARKER et al.
• Court: Idaho Supreme Court

Page 1058

237 P.2d 1058

72 Idaho 137

FIDELITY TRUST CO. v. STATE et al.

COEUR D'ALENE PRESS CO. v. PARKER et al.

No. 7711.

Supreme Court of Idaho.

Nov. 21, 1951.

Keane & McCann, Wallace, for appellants.

Elder, Elder & Smith, Coeur d'Alene, for respondent Trust Co.

Clay V. Spear, Coeur d'Alene, for respondent Press Co.

GIVENS, Chief Justice.

April 1, 1942, the Fidelity Trust Company, by written lease, rented a portion of the fourth floor of the Powell Building in Coeur d'Alene to Florence A. O'Rourke and A. F. McFee, doing business as the Foresters Club, from July 1, 1942 to June 30, 1947.

The lease prohibited assignment or subleasing without the written consent of the lessor and contained, among other provisions, the following: '4. That the Lessees will not in any way alter or permit any alterations of said building or room without the written consent of the Lessor, and that all alterations or additions to said building or property shall remain for the benefit of the Lessor unless otherwise provided in said consent or in this Lease; * * *.' There is no other provision (if this provision does) disposing of the trade fixtures upon the expiration of the lease. The lessee agreed to yield up immediate possession of the premises to the lessor at the termination of the lease, and under other circumstances not pertinent herein.

Shortly after the execution of this lease, Florence O'Rourke died. Thereafter McFee operated the Club alone, except for an undated and unspecified time when he operated it for an estate, whose is not definitely shown. McFee further indicated he sold the Club to one James Collier, then took it back. No evidence was introduced or offer of evidence made showing when such purported sale was made nor how long Collier owned the Club, except an offered advertisement in the Coeur d'Alene Press of July 3, 1945, for the Foresters Club, naming James Rowan and James B. Collier, Owners.

August 21, 1945, McFee executed a written conditional sale agreement to Horace Parker of the night club and beer parlor business under the name of the Foresters Club on the fourth floor of the Powell Building, together with the good-will, furniture, furnishings, equipment and other personal property, listing various articles as: adding machine, safe, desk, chairs, bars, mirrors, tables, coolers, davenports, glasses, etc.

Apparently, shortly after McFee and O'Rourke entered the premises, trade fixtures consisting of bar, back bar, air conditioning system and other apparatus were installed in the premises and were therein and remained therein up to and after the premises were surrendered by McFee to the Fidelity Trust Company August 7, 1947. No claim or attempt to remove the same was made at that time by McFee or anyone else.

The Coeur d'Alene Press Company filed a complaint in the District Court of Kootenai County November 10, 1947, becoming case No. 13470 therein, to collect $356.98 as a balance due from, in the original complaint, Horace Parker doing business as the Foresters Club, and A. F. McFee, and by the amended complaint January 30, 1948, from Horace Parker and A. F. McFee doing business as the Foresters Club, for display advertising costs incurred between July 1, 1945 and March 31, 1946. In connection therewith the Coeur d'Alene Press Company November 12, 1947, attached the personal property referred to in these pleadings, as set forth in Schedule 'A', being the equipment in the Foresters Club.

December 11, 1947 McFee was served in Wallace and demurred generally to the first complaint January 11, 1948; and demurred to the amended complaint February 8, 1948. Parker was personally served at Asotin, Washington, February 3, 1948 and made no appearance and his default was duly entered.

March 24, 1948 the Fidelity Trust Company filed a complaint against the State of Idaho, H. H. Haner, Sheriff of Kootenai County, becoming case No. 13688 in the District Court of Kootenai County, alleging it had been served with a notice of sale of said tables, davenports, bar, back bar and bar fixtures March 25, 1948 under execution, apparently on behalf of the State of Idaho for unpaid taxes of some kind, and sought a restraining order preventing such sale on the claim that the bar, back bar and fixtures, refrigerators, etc. belonged to said Fidelity Trust Company. Such injunction was issued and April 22, 1948 one of the attorneys for the Trust Company made affidavit to the effect the Coeur d'Alene Press Company claimed an interest in the property of Parker and McFee, doing business as the Foresters Club, by reason of suit and attachment theretofore brought by it, disclaiming any interest in the personal property described in Schedule 'A' and so attached.

April 22, 1948 the Trust Comany filed an amended complaint joining the State, the Sheriff, Parker and McFee, and the Coeur d'Alene Press Company and claimed ownership of the bar, back bar, fixtures, coolers, refrigerators, etc. as trade fixtures in the premises theretofore occupied by the Foresters Club; alleged that Parker and McFee had no interest in such property and again recited the prospective sale under execution of the State of Idaho, and asked that all the above parties defendant be required to set forth the nature of their claims; that the Sheriff be enjoined from selling the trade fixtures, but disclaimed any interest in the property described in Schedule 'A'; that all of the property, both the trade fixtures and the equipment, was then in the Powell Building belonging to the Fidelity Trust Company, and alleged:

'IX

'That by reason of the conflicting claims of said defendants the Fidelity Trust Company, the above-named plaintiff, is in great doubt as to which defendant is entitled thereto and under the circumstances is in great danger of being greatly harrassed and damaged and cannot deliver the said personal property to either or any of said claimants or defendants without the aid and the order of this court.

'X

'Plaintiff further alleges that it has not brought, and does not bring, this suit unlawfully with or at the instance of any of the said claimants or for the purpose of giving any advantage to said claimants, but has commenced this suit of its own accord for the sole purpose of bringing and depositing into the court said personal property to abide the order and judgment of this court.'

Schedule 'A' was appended thereto.

On the same day the Trust Company, by motion, asked that the Coeur d'Alene Press Company and Parker and McFee, doing business as the Foresters Club, be required to litigate their several claims among themselves. Thereupon the trial Court ordered the Coeur d'Alene Press Company and Parker and McFee, doing business as the Foresters Club, be made additional parties defendant in the suit by the Trust Company.

May 14, 1948 the Trust Company asked that the property enumerated in Schedule 'A' be stored by the Sheriff pending the further order of the Court and again disclaimed any interest in and to such property, but because the Trust Company was remodeling the building, it wanted the equipment--not the trade fixtures--taken out of the building.

June 10, 1948 a stipulation, authorizing the removal of the property described in Schedule 'A' by the Sheriff from the fourth floor of the Powell Building, to be stored by him until further order of the Court, was signed by the attorneys for the Trust Company, attorney for the Sheriff, for the Press Company, for the State of Idaho, and attorneys for McFee. The property set forth in Schedule 'A' was taken over and apparently still is under the care and in the custody of the Sheriff under order of the Court, and the temporary restraining order theretofore issued was dissolved June 17, 1948.

August 31, 1948 the State disclaimed any interest in the trade fixtures described in the Trust Company's first cause of action; and April 12, 1950, disclaimed any interest in the property described in the second cause of action and enumerated in Schedule 'A'.

The Coeur d'Alene Press Company in its answer and cross-complaint as interpleader under the order of the trial Court making it a party to the suit instituted by the Trust Company, alleged as follows:

'III.

'Said cross-defendants are indebted to the cross-complainant in the sum of $356.98 for the balance of account for display advertising published in the cross-complainant's newspaper, 'The Coeur d'Alene Press,' which advertising was done, furnished and performed at the special instance and request of said cross-defendants between on or about the 1st day of July, 1945 and on or about the 31st day of March, 1946; the aggregate value of said display advertising amounting to $415.08 no part of which has been paid except $58.10, leaving a balance now due and owing to the cross-complainant of $356.98, together with 6% per annum interest from on or about June 30, 1946.

'IV.

'Said cross-defendants are indebted to said cross-complainant in the sum of $182.50 for the balance of account for the cross-complainant's newspapers, 'The Coeur d'Alene Press,' which were sold to said cross-defendants and delivered to the Farragut Hospital at Farragut, Idaho, which sale and delivery were made, done, furnished and performed at the special instance and request of said cross-defendants between the 1st day of October, 1945 and the 31st day of January, 1946, the total value of which newspapers was in the sum of $242.50, no part of which has been paid except $60.00, leaving a balance due and owing to the cross-complainant from said cross-defendants in the sum of $182.50, together with interest thereon at the rate of 6% per annum from on or about the 30th day of April, 1946.

* * *

* * *

'VI.

'An action has heretofore been regularly commenced, and is still pending, in the above entitled Court by the cross-complainant against said cross-defendants Horace Parker and A. F. McFee, doing business as the 'Foresters Club,' for the recovery of said sums; that writ of...