Holland Furnace Co. v. Bird

• Citation: 45 Wyo. 471,21 P.2d 825
• Decision Date: 02 May 1933
• Docket Number: 1786
• Parties: HOLLAND FURNACE CO. v. BIRD
• Court: Wyoming Supreme Court

21 P.2d 825

45 Wyo. 471

HOLLAND FURNACE CO. v. BIRD

No. 1786

Supreme Court of Wyoming

May 2, 1933

APPEAL from District Court, Uinta County; JOHN R. ARNOLD, Judge.

Action by the Holland Furnace Company against Joseph Bird, Sr.

There was a judgment in favor of defendant, and plaintiff appeals.

Reversed.

For the appellant, there was a brief by Samuel Corson, of Evanston Wyoming, and Roberts & Roberts, of Salt Lake City, Utah, and oral argument by Mr. Ben E. Roberts.

The finding of the trial court of "general issues for the defendant and against the plaintiff" was erroneous. Murphy-Cantrill Co. v. Mulcahy, 237 P. 557; Bancroft Code Practice, Vol. 2, Section 1680. The court erred in finding no proof of the corporate capacity of plaintiff, the answer did not deny plaintiff's corporate capacity. Mechanics' Co. v. Machine Co., (Ark.) 26 S.W.2d 80; Loose-Wiles Co. v. Jolly, (Ark.) 238 S.W. 613; McCleve v. Trobridge, 22 N.Y.S. 674; Vulean v Myers, 11 N.Y.S. 663; Bengston v. Co., 31 Hun 96. Non-compliance by a foreign corporation with the laws permitting it to do business in the state, is an affirmative defense that must be alleged and proven. Western Union Tel. Co. v. Louisville, (Ala.) 81 So. 45; McIntosh Co. v. Buffington, (Ore.) 241 P. 393. Plaintiff had complied with the laws of Wyoming as a foreign corporation. Lumber Co. v. Hold, (La.) 55 So. 986; Land Co. v. Perkins, 26 S.W. 256; Sahaba Oil Corp. v. Parish, (Ark.) 299 S.W. 1016; Farm Savings v. Muhl, 37 S.W.2d 316. The court erred in finding that the heater and piping were fixtures. Holland Furnace Co. v. Lowe, 159 S.E. 281; Campbell v. Roddy, (N. J. E.) 14 A. 279; Bromich v. Burkholder, (Kans.) 158 P. 63; Ratchford v. Co., (N. Y.) 112 N.E. 447 and cases cited; Evans v. Co., 22 S.W.2d 377; Bank v. Holland Furnace Co., 153 S.E. 309; Gas & E. Shop v. Co., (Ky.) 13 S.W.2d 1009; Crown v. Co., 146 A. 346; Electric Co. v. Co., (N. J. E.) 42 A. 101; Standard v. Ellington, (N. C.) 90 S.E. 564; Beatrice Co. v. Sylvester, (Colo.) 179 P. 154; Ins. Co. v. George, (Minn.) 79 N.W. 1028; DeBeboise v. Co., (N. Y.) 127 N.E. 487; Paine v. McDowell, (Vt.) 41 A. 1042; Holt v. Henly, 232 U.S. 637; Detroit Co. v. Brewing Co., 233 U.S. 712; Re Sunflower Co., 195 F. 180. The cases may be grouped in three classes: supporting, first, the New York, or legal doctrine; second, the New Jersey, or equitable doctrine; and third, the Massachusetts doctrine. In Holland Furnace Company v. Lowe, supra, the installation was the same as here in question, and it was held that the furnace was removed without injury to the property. See also: Prisco v. Befulco Bros., 254 N.Y.S. 459. In Bank v. Holland Furnace Company, supra, the same rule was followed and also in Smith v. Co., supra. Other cases illustrating the rule are Evans v. Loan Assn. Co., supra, and Loan Assn. v. Smith, supra; Anglo-American Mill Co. v. Co., (Ida.) 240 P. 446; Craine Co. v. Bank, 218 N.Y.S. 143; Central Gas Co. v. Browning, (N. Y.) 103 N.E. 822. There was no evidence to support a finding that the old heater was removed by appellant or that the old furnace was a fixture. The court erred in the finding that Mina Brough conveyed the heater and piping to Joseph Bird, Sr. A purchaser of realty at a foreclosure sale, under a mortgage executed prior to the annexation of chattels thereto, installed under a conditional sale contract, takes subject to the right of the vendor of the chattels to remove the same. Anglo-Mill Co. v. Co., (Ida.) 240 P. 446; Craine Co. v. Bank, 218 N.Y.S. 143; Atlantic Trust Co. v. Laundry Co., (N. J. E.) 53 A. 212; Eaves v. Estes, (Kans.) 15 Am. Rep. 345. The purchaser at a trustee's sale acquires all the title of the grantor at the time of making the trust deed with his after acquired right. Murray Co. v. Simmons, 229 S.W. 461; Raymond Co. v. Ball, 210 F. 217; Bromich v. Burkholder, (Kans.) 158 P. 63; Davis v. Bliss, (N. Y.) 79 N.E. 851; Hill v. Sewald, 53 Pa. St. 271. The mortgagor was forced to purchase a new furnace. The court erred in denying plaintiff the right to remove the heater and the pipes in the basement, such finding being contrary to the evidence and the law in the case.

For the respondent, there was a brief and oral argument by P. W. Spaulding, of Evanston, Wyoming.

Plaintiff relies in a replevin action upon an unrecorded conditional sale contract, purporting to cover the gas heater or furnace involved, which it installed in a dwelling, then containing an adequate coal furnace, removed the coal furnace and thereafter removed the gas furnace, allowing a credit of $ 360.00, and then installed the furnace here involved. Further material facts are disclosed by the evidence. Plaintiff's corporate capacity was denied and the proof of its right to do business in the state was insufficient. 14 C. J. 174; 22 C. J. 838; U. S. Machine Co. v. Eolff, 243 F. 413. It is uncertain as to what property was involved, in some places it is referred to as a "heater" and in others, as "heating and piping." The equitable rule is stated in Bromich v. Burkholder, 158 P. 65. Plaintiff seeks to remove the gas heater without replacing the furnace it removed which was a fixture. Slane v. Curtis, 286 P. 376. Most of the cases cited by appellant are founded on facts differing from those in the present case. The old furnace was a fixture and subject to the mortgage. 26 C. J. 687; Stockwell v. Campbell, 12 Am. Rep. 393. The burden of proof was upon appellant. Shipler v. Co., 220 P. 1100; 62 A. L. R. 368; McCloskey v. Henderson, 131 N.E. 867. The question here is whether the vendor can enter mortgaged property, remove fixtures subject to a mortgage, substitute another fixture, necessitating many changes on the premises, after a mortgage has been given, and thus prejudice the rights of the mortgagee. We submit that this cannot be done and that the judgment of the trial court should be affirmed. The plaintiff failed to establish its corporate capacity. The conditional sale contract does not reserve title to plaintiff to the No. 4000-B Roper Warm Air Heater. The heater became attached to the realty, was subject to the mortgage and passed under the deed. The plaintiff is estopped by its refusal to return the coal furnace, to now claim the gas heater.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The Holland Furnace Company brought a replevin action in the District Court of Uinta County to recover a warm air furnace or "heater," as it is designated in its petition, which it had theretofore installed in the basement of a dwelling house in Evanston, Wyoming. Joseph Bird, at first the mortgagee and ultimately the owner of the premises, defended the action. Judgment was given that the plaintiff take nothing in the proceeding and that "the defendant is entitled to the possession and property in" said furnace. The plaintiff has brought the case here by direct appeal. The record discloses the following facts: On March 11, 1930, Mrs. Mima E. Brough was the owner of a dwelling house in Evanston, Wyoming, on which she had in 1920 given a regularly recorded mortgage to Joseph Bird and which, on the date first above mentioned, was still in force and the obligation secured thereby unpaid. On that date she entered into a written contract with the Holland Furnace Company, under which the latter installed in the basement of the house aforesaid a "No. 4000-B Roper Warm Air Heater," the chattel in controversy now. The furnace was set on a cement base and held in place thereon merely by its own weight. It was connected with the building by means of a smoke pipe to the flue, pipes supplying the gas for fuel, and by cold and hot air runs, these last being covered with asbestos paper which extended a few inches therefrom upon the furnace itself, the paper being used for insulation purposes and also to make the joints in the pipes air tight. It also appears that some time in the year 1929 the Holland Furnace Company removed from the house aforesaid an old coal burning furnace and put in a gas burning furnace which was not satisfactory and which was replaced by the "4000-B Roper" heater, aforesaid. The written contract above mentioned also provided for the installation of "warm air faces, stacking, boxing, regulator, and all other fittings" necessary to make the heating device work properly, for which a price of $ 400 was to be paid, the amount due for the heater being fixed at $ 360. These amounts were to be paid by Mrs. Brough in specified installments.

On of the paragraphs of the agreement between Mrs. Brough and the Holland Furnace Company read as follows:

"The heating and piping in basement shall remain personal property at all times and the title thereto shall remain in us until you make final payment therefor, whereupon title shall vest in you as buyer. If any payment is not made on the date when it becomes due, as herein provided, all the unpaid balance shall immediately become due and payable. In case default is made in any payment when due, we retain and shall have the right to remove the heater and piping in basement and retain all payments made hereunder as and for the reasonable rental thereof. No action to enforce any rights under Mechanic Lien Laws or any similar laws shall prejudice our right to remove the heater and piping on default of payment as provided above."

The complete installation called for by the contract appears to have been made by the Holland Furnace Company, but the only article sought by this action to be removed from the building is the heater. This change in the heating system in the house was made without the knowledge or consent of the mortgagee.

It developed in the summer of 1930 that Mrs. Brough became unable to meet either the payments due on the mortgage to Mr Bird or those due on...