Goodin v. Elleardsville Hall Ass'n

• Decision Date: 12 February 1878
• Citation: 5 Mo.App. 289
• Parties: JOHN GOODIN, Respondent, v. ELLEARDSVILLE HALL ASSOCIATION ET AL., Appellants.
• Court: Missouri Court of Appeals

5 Mo.App. 289

JOHN GOODIN, Respondent,

v.ELLEARDSVILLE HALL ASSOCIATION ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1878.

1. A fixture is in its nature a chattel, but must have been so planted in or attached to the soil as to have become, in contemplation of law, a part of it, so that it cannot be removed without the consent of the owner, and partakes of all the legal incidents of a freehold.

2. Where a thing which is adapted to the use of that part of the realty to which it is connected is annexed, either really or constructively, to the realty, with the intention, on the part of the party making the annexation, to make the article a part of the building itself, it is a fixture; but each particular case of fixtures must be determined by its own facts, and is more for the jury than for the court.

3. For the purposes of the mechanic's-lien law, the rules applicable between heir and executor should be applied, and that only should be considered a fixture which is so attached as to become a part of the building which is itself a part of the realty.

4. Furnaces weighing 2,500 pounds were, during the course of the erection of a building, put into it, in sections, cemented to their place on brick foundations built for them on the ground floor; furnished therewith, and part thereof, were smoke-flues connecting with flues in the walls of the house, and hot-air ducts or flues passing through the house, into register-boxes cut for them in each story, and firmly fastened, making provision for heating the entire building, there being no other provision for heating it. Held, that the furnaces, smoke-flues, and air-ducts were a connected whole and a part of the realty, for which a mechanic's lien would lie.

APPEAL from St. Louis Circuit Court.

Affirmed.

HITCHCOCK, LUBKE & PLAYER, for appellants: As to what are fixtures.--Wag. Stat. 907, sec. 1; Collins v. Mott, 45 Mo. 101, 102; Haeussler v. Missouri Glass Co., 52 Mo. 452; Hunt v. Mullanphy, 1 Mo. 508; 3 Mo. 207; Rogers v. Crow, 40 Mo. 91; Heimes v. Ament, 43 Mo. 298; Graves v. Pierce, 53 Mo. 423; Lambard v. Pike, 33 Me. 144; Baldwin v. Merrick, 1 Mo. App. 281. The taking of other security, either on property or that of individuals not parties to the transaction, will have the effect of waiving or discharging the right to a mechanic's lien.-- Bradley v. Anderson, 33 Ill. 113; 48 Ill. 442.

LUCIEN EATON, for respondent: A furnace placed permanently in a house is a fixture, a part of the realty.-- Thielman v. Carr, 75 Ill. 385; Latham v. Blakeley, 70 N. C. 369; Rogers v. Crow, 40 Mo. 91; Stockwell v. Campbell, 39 Conn. 362; Alvord v. Gleason, 36 Conn. 86; Reilly v. Hudson, 62 Mo. 383 Potter v. Cromwell, 40 N. Y. 287. Actual attachment to the land is not necessary to make a chattel a fixture.-- Snedeker v. Warring, 12 N. Y. 170; Wadleigh v. Jauvin, 41 N. H. 503.

BAKEWELL, J., delivered the opinion of the court.

This is an action brought against the Elleardsville Hall Association, on a mechanic's lien, for two No. 8 Monitor furnaces, with registers, hot-air pipes, and cold-air ducts. The petition states that the price agreed was $900, of which $200 was paid; that, in acknowledgment of its indebtedness, the association made its three notes, which plaintiff offered to surrender, and of which he made profert. The answer was a general denial. Afterwards, James Duross moved to be made a party defendant, on the ground that he then owned the property The motion was granted, and he filed a general denial. The cause was tried by the court, without a jury, and there was a finding and judgment for the amount claimed, and for the lien. Duross alone appeals.

It is claimed that, on profert of the notes, it appeared that they were indorsed by one Ganzhorn, and that the taking of the notes thus secured was a waiver of the lien. This defence, it is claimed, on the other hand, is in the nature of a confession and avoidance, and could not be shown under the general issue. It is not necessary to pass upon the question of pleading. There is nothing to show that the note in question was given or received in payment of the balance due, and we do not consider that the mere taking of these notes was a waiver of the lien. Elliott v. Sleeper, 2 N. H. 525; Jaffrey v. Cornish, 10 N. H. 505. There is really only one question in the case. It is, whether or not the goods sold were of such a character as that a lien could be had for them. We proceed to its consideration.

There was evidence tending to show that the furnaces were put in when the building was approaching completion, the work occupying about three weeks. No other provision existed for heating the building, which was used as a liverystable on the first floor, and as a hall on the second floor, and as a lodge-room for society meetings on the third floor. The furnaces weighed over two thousand five hundred pounds, were put up in sections, and were cemented to their place, and set on and cemented to brick foundations laid by plaintiff in cement on the ground floor, and could be removed only by taking them apart in sections. The hot-air flues were carried to the top story, passing into register-boxes cut into and nailed to the floors. Holes were cut for them in each floor, and one joint in each floor cut to admit them; they were sheathed in the floors with tin, and firmly attached to the wood-work. Air-ducts in the first story furnished fresh air for the furnaces. The smoke-flues were connected with the brick walls, and entered flues therein. The holes in the floors were cut by the carpenters, when the building was put up, for the purpose of receiving the flues.

The court declared the law as follows: “If the court, sitting as a jury, finds that the two furnaces mentioned in the petition were placed in the building for permanent use; were placed on a bed of bricks and mortar in the first story; that there was no cellar or basement; that these furnaces were so large and heavy as to be put in place in sections, and the joints cemented; that the furnaces were connected with the brick walls of the building, and with flues therein constructed for them, by smoke-pipes; and that the hot-air flues from said furnaces were carried therefrom through the floors and plastering of the second and third stories of said building, and so connected thereto that their removal would cause injury to said floors and plastering, such as to entail more or less repairs therefor;--if these facts are found to be true, then the law is that such furnaces are fixtures under the mechanic's-lien law of this State.”

And the following declarations of law, asked by defendant, were refused:

“If the furnaces in question are not permanently attached to the defendant's building, and can be removed therefrom without substantial injury to said building, then plaintiff is not entitled to any mechanic's lien.

If the furnaces sold and delivered by plaintiff to defendant are portable furnaces, and can be removed without substantial injury to the building, and the building otherwise heated, then plaintiff is not entitled to any mechanic's-lien judgment in this case.

Upon all the evidence, plaintiff is not entitled to a mechanic's lien against the property in the petition described.”

The ingenious and learned author of a brief treatise on Fixtures, published fifty years ago, took for his motto the well-known lines in which the slave in Terence remonstrates with his young master that it is impossible to be in love by rule:--

“Incerta hæc si tu postules, Ratione certa facere, nihilo plus agas, Quam si des operam ut cum ratione insanias.”

As the cases on the subject of fixtures have multiplied a hundred-fold since Mr. Gibbon wrote, and as “each new case seems only the more to disturb any fixed or certain rule that seemed deducible from former cases, so that precedents may readily be given that seem to...