Gen. Motors Accept. v. F. & H. Sav. & L. Assoc.
| Decision Date | 06 March 1933 |
| Docket Number | No. 17685.,17685. |
| Citation | 58 S.W.2d 338 |
| Court | Missouri Court of Appeals |
| Parties | GENERAL MOTORS ACCEPTANCE CORP., RESPONDENT, v. FARM & HOME SAVINGS & LOAN ASSOCIATION, APPELLANT. |
Appeal from Circuit Court of Jackson County. — Hon. Wm. G. Lynch, Special Judge.
AFFIRMED.
Mosman, Rogers & Buzard and Louis N. Wolf for respondent.
Ewing, Ewing & Ewing and Baker, Botts, Andrews & Wharton for appellant.
This is an action in replevin. There was a verdict and judgment in favor of plaintiff that it was entitled to the possession of the property, the value of which was fixed at $1447, and that plaintiff recover the sum of $615 for the unlawful retention of the same. Defendant has appealed.
The facts show that on or about April 22, 1927, the McCanless Building Company gave a real estate mortgage to the defendant upon a kitchenette apartment building, in Kansas City, to secure an indebtedness of $75,000 due from the former to it; that the mortgage was duly recorded and, thereafter, the McCanless Building Company sold the building to Christenson Company; that while the latter was the owner of the building, and on September 21, 1928, it purchased of the R.E. Parsons Electric Company the property which is the subject of this litigation, being two Frigidaire Compressors, thirty-two Frigadaire Cooling Coils and thirty-two Frigidaire Refrigerators, for the price and sum of $3282.30, which was to be installed in the building by the Parsons Company. Although defendant's mortgage had not been paid it was not informed, through any agent authorized to received the information, of the purchase or installation of the refrigerator system. The purchase was made under a conditional sales contract, providing for the payment of $377.46 in cash by Christenson Company and the balance, together with the financing charges, in twenty-four monthly installments, "to be evidenced by chattel mortgage or conditional sales agreement which purchaser agrees to execute upon request." No other conditional sales agreement was ever executed. The conditional sales contract further provided:
......
"The Frigadaire shall remain chattel property and shall be connected with any pipes, tubing or conduit built into the building only by a coupling which screws on and off and shall not be attached to or built into any part of the building or to any frame work in such manner as to interfere with ready inspection, service, repair, removal or replacement."
It also provided:
"NOTE: — Seller agrees to install above equipment in building hereinafter mentioned and to build into said building conduits or tubing necessary for use in connection therewith, which conduits and tubing shall become a part of building and are not any part of goods to which title is retained."
The evidence shows that the tubing, bolts and fittings were figured as one item, and the compressors, coils and refrigerators as a separate item. However, the work of installing both items was, under the provisions of the contract, to be done by the R.E. Parsons Electric Company "on the basis of a complete job" — what is known as a "Turnkey" job. All of the installations "were a part of that complete job."
The work was completed on the 16th day of October, 1928, by the R.E. Parsons Electric Company and, on that day after the work was finished, Christenson Company gave to that company a chattel mortgage upon the compressors, coils and refrigerators in question, for the deferred payment due upon them, amounting to $2904.84. This mortgage was duly assigned to the plaintiff. It recites:
"The property may remain in possession of the mortgagor as long as the conditions of this mortgage are fulfilled and shall remain strictly personal property whether placed upon a permanent foundation or in what manner affixed or attached to the building or structure in which it may be contained."
After the installation of the equipment default was made in the performance of the conditions in the real estate mortgage and the building was taken over by the defendant as mortgagee. Default was also made in the payments to be made under the chattel mortgage and, thereafter, demand was properly made by plaintiff for the balance due, which demand was refused, and this suit was brought. The chattel mortgage was not recorded until three days after its execution and the conditional sales contract was never recorded.
At the time the contract for the installation of the property in suit was executed, the apartments in the building were equipped with ice boxes and in doing the work the R.E. Parsons Electric Company took out these boxes and stored them in the basement.
The new equipment was installed as follows: A concrete base for the compressors was constructed in one corner of the basement of the building and became permanently attached. A one-inch cork board was placed on this base and the compressors were placed on this board but not attached to it or the base in any manner. The power for the compressors was furnished by electricity. The wires were run from the meter where the power lines entered the building, thence along the walls and were permanently affixed thereto and to the ceiling of the basement. They then ran to a point near the compressors where they entered two "Square D" switch and fuse boxes and two "starters," all attached to the wall. They then ran to the compressor where they were attached to the motors of the compressors by splicing them to the wires of the motors.
The compressors were water cooled, the water being supplied through a pipe which was attached to the water line in the building. This pipe was fastened to the wall and ran to a point near the compressors. It was then connected to the compressors by a piece of hose some twelve or eighteen inches long. This hose was held in place by clamps which could be loosened or tightened by a screw. The water was discharged from the compressors into a waste pipe which was connected to the compressors in the same manner as was the piping conveying it thereto. This waste pipe was fastened to the wall and ran to a soil or sewer pipe into which it screwed or to which it was attached by a union. Attached to the compressors were three copper tubes, one a small supply line and the others two larger return lines, through which the refrigerant solution was circulated between the compressors and the various refrigerators throughout the building. These tubes are permanent equipment and, under the provisions of the purchase contract, they were to become a part of the building. They were attached to the compressors by flare nuts which could be easily unscrewed. They ran up the basement wall and back through the building along the ceiling. The tubes were attached to the walls and ceiling by "U" shaped pieces of metal, each end of which was screwed or nailed to the wall or ceiling. At intervals along the ceiling branch lines of the tubing were taken off the main line and run up through holes cut in the basement ceiling and the floor above it. In a few instances these branch lines were run through partitions to the height of the service doors in the partitions on the first floor of the building and were taken out of the partitions through holes cut in the frame work of these doors. In other instances the branch lines and tubing from the basement were not run inside of the partitions even to the first floor. The tubing ran from the first to the upper floors, not through the partitions, but through holes cut in the kitchen cabinet shelves above the refrigerators and through holes cut in the ceiling of the floor immediately above. On each floor of the building the tubing was fastened to the mop board where the tubing came through the floor. Behind each refrigerator there was a "T" connection in the line of tubing and two short copper tubes, one a half inch and the other a quarter of an inch in diameter, ran from this connection through a hole in the back of the refrigerators and the two tubes were connected with the cooling coils inside the refrigerators by flare nuts, which could be easily unscrewed. In this coil the refrigerant evaporates and the refrigeration takes place.
As before stated, prior to the installation of the automatic refrigeration system, refrigeration was by means of ice and ice boxes in the kitchen of the various apartments; the ice was placed in the various refrigerators from the public hallways of the building through the small service doors above mentioned; these doorways, which are about waist high and approximately two and one-half or three feet square, were finished and trimmed as were the other openings in the building.
Defendant's witnesses testified to the effect that notches were cut in the framework of various service doors in instances where the tubing did not come out of the partitions through holes cut in the frames. These notches were cut to provide recesses through which the tubing could run up behind the refrigerators and past these doors. These notches were described as being two inches deep.
The old ice boxes in the various kitchens sat on the floor in recesses left in the built in cabinets, and in front of these recesses and refrigerators (as viewed from inside the kitchen) there were cabinet doors. When the system was installed these ice boxes were removed from the recesses and the "Automatic Refrigerators" (in each of which there was a cooling coil) were placed in the recesses.
There was evidence that the new refrigerators were shorter in height than the old boxes; that they were not placed upon the floor but each was set on two-by-fours which were nailed to the...
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