German Savings & Loan Soc. v. Weber

• Decision Date: 08 December 1896
• Court: Washington Supreme Court
• Parties: GERMAN SAVINGS & LOAN SOC. v. WEBER ET AL.

47 P. 224

16 Wash. 95

GERMAN SAVINGS & LOAN SOC. v. WEBER ET AL.

Supreme Court of Washington

December 8, 1896

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by the German Savings & Loan Society against C. F. Weber &amp Co. and others to determine whether chattels attached to a building by C. F. Weber & Co., by contract with their co-defendants providing that the chattels should remain personalty, and title thereto remain in C. F. Weber & Co. till paid for, become fixtures, and as such subject to the lien of plaintiff's mortgage. From a judgment for defendants C. F. Weber & Co., plaintiff appeals. Affirmed.

Cyrus Happy, for appellant.

Forster & Wakefield and Everett C. Ellis, for respondents.

DUNBAR J.

This case is submitted upon an agreed statement of facts. The facts were about as follows: That on the 27th day of May 1892, A. M. Cannon and Jennie F. Cannon, his wife, who were the owners in fee simple of certain lots in Spokane Falls for a valuable consideration executed and delivered to the plaintiff (appellant herein), the German Savings & Loan Society, a mortgage upon said lots, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining. This mortgage was duly recorded on the 2d day of June, 1892, and none of the indebtedness for which it has been given has been paid. That upon a portion of said lots, Cannon and wife erected a building for the purpose of carrying on a banking business. That said building has never been occupied, but that said Cannon contracted with the respondents C. F. Weber & Co., to put in said building what is known as the "standing finish," consisting of window and door sashes, jambs, and trimmings, wainscoting, entrance doors, side door, two small doors in rear, including glass and hardware, baseboards and wainscoting, mantle piece without tiling and footings,-in all amounting to $3,667.32. That in pursuance of said contract said C. F. Weber & Co. manufactured and shipped to Spokane said standing finish, and that they then learned that said Cannon was unable to pay for the same; and thereupon the said Cannon and his wife entered into an agreement on the 1st day of July, 1893, with the said C. F. Weber & Co., to the effect, in brief, that C. F. Weber & Co. should retain possession of said property and said buildings, as aforesaid, until they were fully paid for according to the terms of their contract, or until other arrangements were made, satisfactory to the said C. F. Weber & Co., and in the meantime the ownership and possession of said property was to remain with the said C. F. Weber & Co. That under said agreement, C. F. Weber & Co. placed their said property in the bank building. That the glass had been put in the sash, and the sash put in the windows. That the jambs and trimmings had been fastened to the building by screws, and the wainscoting and other finish had been fastened to the building by screws, the wainscoting being screwed to a furring strip running horizontally around the said building at the top of the wainscoting. That the room was only plastered down to the top of the wainscoting, and behind the wainscoting, baseboards, etc., was plain brick. And the agreement further provides that all of said property described in said Exhibit C could be removed without damage or injury to the building other than the loss to the realty, if it should be determined that it is such a part of the realty that the said parties would have no right to remove it. It is the contention of the respondents that C. F. Weber & Co., under the terms of the contract, have the right to remove said property, as shown in Exhibit C, referred to above, by leaving the building in substantially the same condition that it was in before the said property was placed in said building; and the German Savings & Loan Society (the appellant here) claims that said property has become a part of the realty, that it is covered by its mortgage, and that the said parties have no right to remove it. The judgment of the court was in favor of C. F. Weber & Co., and from such judgment an appeal is taken to this court.

The history of litigation on the subject of fixtures and annexations is to the effect that it has always been considered largely a mixed question of law and of fact depending upon the relations of the parties, the character of the fixtures, and the manner of the annexation, very largely in each particular case. It cannot be denied, however, that the old common law in relation to fixtures being construed as a part of the realty has been greatly modified in modern times by reason of the changing conditions of trade, and for the purpose of protecting traffic in building fixtures. The contention of the appellant in this case is twofold: First, that, as between the parties to this contract, the goods supplied here became a part of the real estate, and that they had no right to stipulate or agree that real estate was personal property, and that such agreement could not be carried into effect by the court; and, second, that, even conceding the efficacy of such an agreement between the parties, the mortgagee in this case could not be bound by the agreement, and consequently his rights would not be affected thereby, and that the question of intention could not be made to apply against his interests. We are satisfied that the trend of modern authority is to the effect that the intention of the contracting parties should be allowed to control; and that intention will control, even so far as the rights of the former mortgage is concerned, subject to the limitation that the fixtures which, outside of stipulation, would have, under the law, been regarded as real estate, can be removed only when such removal can be effected without injury to the real estate or to the building to which they are attached. We think this is the almost unbroken current of modern...