Hawkins v. Hersey

• Decision Date: 24 April 1894
• Citation: 30 A. 14,86 Me. 394
• Parties: HAWKINS et al. v. HERSEY.
• Court: Maine Supreme Court

30 A. 14

86 Me. 394

HAWKINS et al.

v. HERSEY.

Supreme Judicial Court of Maine.

April 24, 1894.

(Official.)

Action of trover by James B. Hawkins and others against Oscar H. Hersey for the conversion of certain machinery. There was a verdict for plaintiffs, and defendant moved for a new trial. At the argument the parties stipulated that the full court should hear the case as upon report, and determine what number of articles, if any, had been converted, the damages to be assessed by a person agreed on. Judgment for plaintiffs.

John P. Swasey and Edgar M. Briggs, for plaintiffs. Geo. D. Bisbee, for defendant.

WHITEHOUSE, J. The plaintiffs bring this action of trover to recover the value of certain machinery delivered to Harlow & Son, of Buckfield, during the year 1890, under a contract with them, by which the machinery was to remain the property of the plaintiffs until paid for, and alleged to have been sold and converted by the defendant.

It appears that Harlow & Son had previously been operating a steam mill in Buckfield for the manufacture of toothpicks, but became embarrassed in business, for the want of sufficient capital. Thereupon, the defendant united with six others in a praiseworthy effort to encourage the productive Industry of the community by aiding the firm with a loan of $1,200, secured by a mortgage of the mill property, with its machinery and fixtures, signed by J. M. Harlow, a member of the firm of Harlow & Son, and sole owner of the mill, containing the following clause: "Together with all tools, machines, and attachments, and machinery of every kind, hereafter used in connection with said mill." But, this business being still unsuccessful.

Harlow & Son supended operations, and made the contract in question with the plaintiffs for the manufacture of wooden cutting-blocks and meat blocks. By the terms of this agreement the plaintiffs were to furnish suitable machinery for the manufacture of these goods, retaining title thereto until wholly paid for, and also to purchase, and consign to Harlow & Son, lumber for such manufacture, to the amount of $1,000, the same to remain the property of the plaintiffs. It was also stipulated in the contract that the plaintiffs might deduct 35 per cent. of the amount due Harlow & Son for the manufacture of the blocks; 25 per cent. to be used towards the payment of the lumber furnished, and 10 per cent. to be applied towards the payment of the machinery which Harlow & Son had agreed to purchase on the terms stated.

In the report of the case it is expressly admitted that "the machinery sued for was put into the mill and set up, and that it became fixtures, under the ordinary rules relative to machinery."

It is a well-recognized rule that when articles of personal property, which are especially adapted and designed to be used in connection with the realty, and essential to the convenient and profitable enjoyment of the estate, are affixed to it, with an intention to make them a permanent accession to the land, they become a part of the realty, though not so fastened as to be incapable of removal without serious injury to themselves or the freehold. Pope v. Jackson, 65 Me. 162; Strickland v. Parker, 54 Me. 263. So, when machinery is sold and placed in a building for the purpose of making it available as a manufactory, and permanently increasing its value for occupation, an agreement between the seller and buyer that the title shall remain in the former until it is wholly paid for will not bind or affect the mortgagee of the realty without notice, and such machinery will pass to the mortgagee as a part of the realty. Bank v. Exeter Works, 127 Mass. 542; Thompson v. Vinton, 121 Mass. 139; Hunt v. Iron Co., 97 Mass. 279. But as against a mortgagee who, with full knowledge, consents to the arrangement, and, while in possession under his mortgage, treats the machinery as personal property, it may properly be considered as a chattel removable by the seller retaining title thereto, although it has the character of a fixture, and has been permanently annexed. Bartholomew v. Hamilton, 105 Mass. 239. So, also, articles which are merely incidental to the particular business carried on at the time, and not designed to be permanent adjuncts to the building, and not essential to the profitable occupation of it, will be deemed personal property, although the...