Gar Wood Indus., Inc. v. Colonial Homes, Inc.

• Citation: 24 N.E.2d 767,305 Mass. 41
• Parties: GAR WOOD INDUSTRIES, Inc., v. COLONIAL HOMES, Inc., et al.
• Decision Date: 16 January 1940
• Court: United States State Supreme Judicial Court of Massachusetts

305 Mass. 41

24 N.E.2d 767

GAR WOOD INDUSTRIES, Inc.,

v.COLONIAL HOMES, Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 16, 1940.

Report from Superior Court, Suffolk County; Good, Judge.

Suit by the Gar Wood Industries, Incorporated, as the conditional vendor of an air conditioning and heating system, against the Colonial Homes, Incorporated, as the conditional vendee thereof, and others, to recover possession of so much of the heating system as should be declared to be personal property and for damages for detention thereof. On report.

Decree for plaintiff against the named defendant and dismissing the bill as to the other defendants.R. I. Gottieb, of Boston (Harry Coltun, of Boston, of counsel), for plaintiff

C. H. Waterman, of Boston, for defendants.

DOLAN, Justice.

This is a suit in equity brought by the conditional vendor of an air conditioning and heating system, against the Colonial Homes, Inc., the conditional vendee thereof and the owner of record of the realty in which the system is installed, and against the Prudential Insurance Company and Morris Goldfine, mortgagees under mortgages executed and delivered by the defendant Colonial Homes, Inc., subsequently to the sale and installation of the system. The relief sought is, in substance, that so much of the system as the terms of the contract of sale so provide be established to be personal property, that the plaintiff's right thereto be established, and that respective decrees be entered ordering the defendants or any of them to deliver to the plaintiff such personal property as the court decrees. Other prayers are that the amount due to the plaintiff from Colonial Homes, Inc., be determined and for damages for detention of the equipment involved.

The judge, after hearing, made an order for decree which contained certain findings of fact. Thereafter he filed supplemental findings of fact amending in part those found in his original order for decree. Still later the parties filed a statement of additional agreed facts, in which it is recited that ‘it is hereby agreed by and between all the parties hereto that the material facts in addition to those found by the court are as follows.’ The facts therein set forth were adopted by the judge and incorporated in his supplemental findings of fact. The judge then entered a ‘Supplemental Order For Final Decree and Report’ in which he reported the case for determination by this court upon the pleadings, the supplemental findings of fact, and the aditional facts agreed upon by the parties. In this order it is stated that a final decree is to be entered in a form attached if the entry of such a decree is warranted, and that otherwise such final decree is to be entered as justice and equity may require. The proposed form of decree, if warranted, is to the effect that ‘a unit consisting of a combination of hot air furnace, electric blower, air filter, humidifier and electric controls encased in a steel jacket, and automatic oil burner, when installed remained personal property and was not wrought into the realty or attached to it in a manner intended to be permanent, and * * * is not subject to the mortgage liens of the defendants, the Prudential Insurance Company of America or Morris Goldfine; [that] the plaintiff is entitled to the possession of the said property as against the defendants * * *’; and that ‘there is due from the defendant, Colonial Homes, Inc., to the plaintiff $326.00, together with interest thereon from November 17, 1937, which said defendant, Colonial Homes, Inc., shall pay within twenty-one days of the date hereof, and upon the failure of the said defendant, Colonial Homes, Inc., to pay said sum as ordered, the plaintiff is entitled to possession of the property described in the bill of complaint but more particularly set forth in paragraph one hereof, and the defendants are restrained from interfering in any amnner with the plaintiff in repossessing the same.’

The facts may be summarized as follows: The building in which the air conditioning and heating system was installed is a frame dwelling of two and one half stories. The equipment is a complete heating and humidifying unit, consisting of a stock furnace with an oil burner, air humidifier, blower, blower motor and filter attachments, electrical control attachments, all being encased in a steel jacket, and duct work built within the walls of the house, and extending to and returning from its rooms. The oil burner, furnace, fuel tank and the air blower, blower motor and filter rest upon pedestals which, in turn, rest upon, but are not attached to, the basement floor. A copper tubing running from the fuel tank to the oil burner is embedded in the cement floor of the basement, but is not sought by the plaintiff. The motor is connected by wires to the electrical system of the house and to the electrical controls of the system. The humidifier is connected to the water supply by boring a small hole in one of the pipe lines and connecting thereto a three-eighths inch copper tubing, which extends to the humidifier and is held fast by a clamp. This connection is removable by unscrewing the clamp, removing the tubing and plugging the hole. The furnace is connected to the chimney by a smoke pipe, which may be disconnected at the furnace by ‘merely slipping off the smoke pipe.’ The unit is connected to the duct work portion of the system by a three-inch strip of canvas held to that part of the duct work called the plenum chamber and to the unit by clamps held together by small screws ‘which are removed in the ordinary manner.’ In addition to the ducts there are registers and grilles to which, together with any other parts of the system that are embedded in the walls or floor of the building, the plaintiff makes no claim. Exclusive of ducts, grilles and registers the unit weighs fifteen hundred pounds, and ‘Any part of the unit in its entirety’ can be disassembled without injury to any part of it or to the premises, and can be removed through existing openings in the building. The system is ‘the only means of heating the house except for the fireplaces.’

The installation of the unit was completed on November 13, 1936, under a contract of conditional sale with the defendant Colonial Homes, Inc., dated October 25, 1936, at an agreed price of $820. At the time of the filing of the bill of complaint a balance of $326 was due and unpaid. Under the terms of the contract it is provided that the title to the equipment, ‘excepting house wiring, ducts and piping imbedded in walls, floors or ceilings * * * shall not pass to the Buyer, but shall remain in the Seller until the agreed price * * * is fully paid in cash; said new equipment shall remain strictly personal property and nothing (anything which may be done by the parties hereto to the contrary notwithstanding) shall prevent the Seller from removing same, or so much of same as the Seller in its sole discretion may determine, from any premises to which it may be attached, upon any breach of this Contract.’ It is also provided in the contract that ‘It is mutually understood and agreed that all house wiring, ducts and piping installed by the Seller which are imbedded in walls, floors or ceilings shall become a part of the building and are not any part of the property to which title is retained by Seller as provided in above Paragraph No. 8 of this Contract.’ No notice of the conditional sale was recorded.

On or about February 9, 1937, the defendant Colonial Homes, Inc., ‘mortgaged the premises for $8,000 to the defendant, The Prudential Insurance Company of America.’ This mortgage was still held by the latter ‘at the time of the trial.’ On or about February 9, 1937, ‘Colonial Homes, Inc. gave a second mortgage of the premises to the defendant Morris Goldfine in the amount of $2000.’ At the time the insurance company and Goldfine ‘took their mortgages, their agents saw the said heating system completely installed in the house and believed the system to be fully paid for and took their mortgages on that belief.’

The plaintiff has argued that the findings of the judge were based, in part, on oral evidence and that therefore they cannot be reversed unless plainly wrong. This contention is without merit, since the record discloses that the decision of the judge was based solely on the facts reported to which the parties agreed. The findings being completely upon agreed facts, it is the duty of this court to draw its own inferences and to reach its own conclusion unaffected by the action of the judge. Bankers' Trust Co. v. Dockham, 279 Mass. 199, 181 N.E. 174;Goldston v. Randolph, 293 Mass. 253, 255, 199 N.E. 896, 103 A.L.R. 1117, and cases cited. Compare Birnbaum v. Pamoukis, Mass., 17 N.E.2d 885. The ultimate findings or conclusions of the judge are open for review not only so far as they involve rulings of law, but also so far as they are conclusions or inferences of fact. Hannah v. Frawley, 285 Mass. 28, 31, 188 N.E. 385.

Considered in the light of the governing statute, G.L.(Ter.Ed.) c. 184, § 13, we are of opinion that the subsidiary facts found do not warrant the ultimate findings of the judge that the unit in question was not attached to the real estate and is not subject to the mortgage liens of the defendant mortgagees and that the plaintiff is entitled to the same. It...