Landau v. Sykes

• Citation: 54 So. 3,98 Miss. 495
• Decision Date: 23 January 1911
• Docket Number: 14973
• Court: United States State Supreme Court of Mississippi
• Parties: M. D. LANDAU v. E. O. SYKES, RECEIVER

54 So. 3

98 Miss. 495

M. D. LANDAU v. E. O. SYKES, RECEIVER

No. 14973

Supreme Court of Mississippi

January 23, 1911

APPEAL from chancery court, Monroe county, HON. J. Q. ROBINS Chancellor.

Suit by M. D. Landau against E. O. Skyes as receiver of the Aberdeen Oil and Ice Company. Judgment for defendant and complainant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Hirsh Dent & Landau, for appellant.

We respectfully ask the court to bear in mind that the descriptive language in the deed of trust under which we are basing our present contention, is the following:

"It being understood that this conveyance is intended to include all of the property of every kind and description now in the possession of and owned and operated by said Aberdeen Oil &amp Ice Company and constituting a part of its plant and equipments in the city of Aberdeen, Monroe county Mississippi, whether herein specifically described or referred to or not."

As hereinbefore pointed out, it is agreed that the articles sold to Mr. Cahn by the receiver, shown in exhibit "A" to the "Agreed Statement of Facts," the proceeds whereof are claimed by appellant, as purchaser under the deed of trust, were on the premises of said Aberdeen Oil & Ice Company when the deed of trust mentioned was executed, and were there when the sales by the substituted trustee and receiver were made.

The sole question to be determined, therefore, is whether or not any part, or all, of the personal property sold by the receiver, the proceeds whereof are so claimed by the appellant, constituted a part of the "plant and equipment" of the Aberdeen Oil & Ice Company.

The agreed statement of facts shows:

"That the coal was bought for the operation of the machinery and that the hull and meal bags were used for the shipment of hulls and meal."

The learned court below held that the coal and hull and meal bags were not covered by the phraseology of the deed of trust and as we recognize that this holding is consonant with a fair and reasonable interpretation of the language used in the deed of trust, especially as the coal was for consumption and as the hull and meal bags were intended for sale, and neither the coal, nor the bags, reasonably intended to remain a permanent part of the property of the Aberdeen Oil & Ice Company, we have no disposition to question the holding of the court below, in this respect.

With reference to the other articles of personal property, the proceeds of which the court denied appellant, the agreed statement of facts shows, that "they are all articles which are usually and ordinarily used in connection with the office and operation of oil mills, ice factories and ginning plants"--the business in which the Aberdeen Oil & Ice Company was engaged--and are also "usually and ordinarily used in connection with the offices of any other factory, mercantile establishment, bank, law office or other business office, which have an up to date office outfit," and that "while these same articles are not necessary to the prosecution of the oil mill, ginner or ice plant, or any of these other businesses in which they may be found and used," they are up to date conveniences for the oil mill and other establishments as above set out and that while they are not peculiarly or specially adapted to the oil mill, ice or ginning business, and may be used in any other business above mentioned, and while it is possible to conduct a ginning business, an oil mill or ice factory without all or some of these articles, that these articles add greatly to the convenience of all the business mentioned and to the proper conduct thereof.

In other words, the agreement, in substance, recites that while these articles are usually and ordinarily used in connection with the business in which the Aberdeen Oil & Ice Company was engaged at the time it executed its deed of trust, and in connection with the operation of which it used them, and are "up-to-date" conveniences for the operation of the business in which said company was engaged, and add greatly to the convenience and proper conduct thereof, and also partake of the same characteristics when used in connection with other enterprises.

As hereinbefore pointed out, the learned court below awarded appellant the proceeds of the ceiling fan, amounting to sixteen dollars, but denied him the proceeds of the other articles of office furniture including books, records, stationery, stoves, linoleums, chairs, iron safe, typewriter, desks, tables and adding machines, although, under the agreed statement of facts, the ceiling fan bore some character attributed to the other articles mentioned.

We respectfully submit that as the record shows that said articles were situated on the premises described in the deed of trust, at the time of the execution of that instrument, and at the time of the purchase by appellant, and as the Aberdeen Oil & Ice Company was, therefore, at the times mentioned, "equipped" with said articles, they necessarily constituted a part of the equipment of said company, and were therefore covered by the terms of said deed of trust, under the agreement made between all of the parties interested, as hereinbefore shown, the proceeds thereof properly belong to appellant.

We respectfully contend that the fact that these articles might have been used as a part of the plant and equipment of some other enterprise, did not prevent them from being, as a matter of fact, a part of the equipment of the Aberdeen Oil & Ice Company in connection with which they were actually used. If the mere fact that an individual article might be used in the operation of two or more enterprises shall deprive it of the character of being a part of the equipment of an enterprise in connection with which it is actually used, it would essentially follow that no individual article can constitute a part of the plant or equipment of any enterprise unless it be an article which is susceptible to only one use in connection with one particular kind of business.

The question is, not whether the article might have constituted a part of the plant or equipment of some other enterprise, but whether they did constitute a part of the equipment of this particular concern, namely, the Aberdeen Oil & Ice Company.

That they did constitute a part of the equipment is indisputably shown by the agreed facts.

We find the word "equipment" defined in Century Digest and Encyclopedia, vol. 3, p. 1985 as follows:

"Anything that is used in or provided for equipping, as furniture, habiliments, war like apparatus, necessaries for an expedition or for a voyage, or the knowledge and skill necessary for a vocation, as the equipment of a hotel, a ship or a railroad; the equipment of a man for the ministry, or for the law."

We find the word "equipment" defined by Webster, as follows:

"Whatever constitutes an outfit for some special purpose." The "special purpose" for which the articles now in controversy were used by the Aberdeen Oil & Ice Company was the equipment and operation of its office.

In the case of Chicago, Milwaukee & St. Paul R. R. Co. v. Hoyt et al., 89 Wis., p. 314, 67 N.W. , p. 189, the court in construing an agreement involved in that proceeding, said:

"By equipment as used, we understand reference is made to the locomotives, cars, furniture, etc., with which the three railroads mentioned were, at the time of closing the deal, to be equipped."

Paraphrasing this language we may say that by "equipment" as used, we understand reference is made to the furniture, etc., with which the Aberdeen Oil & Ice Company was, at the time of the execution of the deed of trust, "equipped."

Sykes & Sykes, for appellee.

The deed of trust in question from the Aberdeen Oil & Ice Company to Leftwich, trustee, etc., conveys certain real estate in the city of Aberdeen, describing same, together with all houses, buildings, structures, improvements, and machinery now or hereafter situated on or belonging to said lands, as well as easements, rights, ways, privileges, thereunto belonging or appertaining, or in any wise appertinent or appertaining thereto. Now, up to this point, it is clearly a mortgage upon the land, machinery and fixtures, that is to say, it does not convey any personalty: Then proceeding this deed of trust reads as follows: "It being understood that the conveyance is intended to include all of the property of every kind and description now in the possession of and owned and operated by the said Aberdeen Oil & Ice Company, and constituting a part of its plant and equipment in the city of Aberdeen, Monroe county,...