Landigan v. Mayer

• Decision Date: 10 January 1898
• Citation: Landigan v. Mayer, 32 Or. 245, 51 P. 649 (Or. 1898)
• Parties: LANDIGAN v. MAYER.
• Court: Oregon Supreme Court

51 P. 649

32 Or. 245

LANDIGAN v. MAYER.

Supreme Court of Oregon

January 10, 1898

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by John Landigan against F.J. Alex Mayer, administrator of the estate of George Herrall, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

This action was instituted to recover certain personal property consisting of a planer, boiler, engine, and governor, bought of J.M. Arthur & Co. in November, 1890, by Jonathan Tice who, with Viola Tice, then entered into three several contracts with the company, all similar in nature, and in form as follows:

"Portland Oregon, November 29th, 1890. $500.00 June 5, 1891, after date, without grace, for value received, I promise to pay to the order of J.M. Arthur & Co., at Portland, Oregon five hundred and no/100 dollars, payable in gold coin of the United States of America, with interest thereon, in like coin, from date until paid, at the rate of then per cent. per annum. And in case action is instituted to collect the money above mentioned, or any portion thereof, I promise to pay, besides the costs prescribed by statute, a reasonable attorney fee in such suit or action. The above note is given upon and for the sole consideration that the said J.M. Arthur & Co. have agreed and promised that, upon the payment of the said note, principal and interest, at maturity, and all other sums of money payable to J.M. Arthur & Co., then due, or to become due, whether evidenced by note, book account, or otherwise, they will sell and transfer to the undersigned the property described in Exhibit A, below, which is hereby made a part of this agreement, which the said J.M. Arthur & Co. have intrusted to the care of the undersigned. It is admitted and agreed that the said property so intrusted is the property of said J.M. Arthur & Co., and the legal title thereof is in said J.M. Arthur & Co., and shall remain in them until they shall make the aforesaid sale and transfer, after all the payments aforesaid shall be paid. And the undersigned agree to return the said property, as set forth in said Exhibit A, to the said J.M. Arthur & Co., if requested, at any time before said sale and transfer, in good order, and such return shall not extinguish or alter the liability of the undersigned to pay the principal and interest aforesaid. And the undersigned also agree to keep said property insured in a sufficient amount, in favor of J.M. Arthur & Co., to cover their interest at all times before the completion of this agreement. Jonathan Tice. Viola Tice."

"Exhibit A. One No. 5 Glen Cove planer and matcher, complete, with countershaft and match heads."

These contracts were assigned to plaintiff by indorsements, as follows: "For value received we hereby assign to J. Landigan or order all our title to, interest in, and rights under the within contract, without recourse."

It appears from the testimony that the property was furnished the said Jonathan Tice to be placed in a structure known as the "South Portland Mill," and that it was so placed during its construction. The boiler was set in the wall, and covered with brick and mortar, the engine bolted down with rods running through the timbers on which it rested, and the planer attached to the floor by wood screws or bolts, and all connected by steam pipes or belts, and operated by the engine in the manner usual in such mills. Subsequently the South Portland Lumbering Company, a corporation, became the owner of the mill and property in controversy. On December 10, 1891 the company executed a mortgage to George Herrall on the premises upon which the mill was erected, with appurtenances. Later a suit was instituted by Henry Failing against the South Portland Lumbering Company and others, including Herrall, to foreclose a prior mortgage, in which suit Herrall, by answer, set up his mortgage. Both, mortgages were foreclosed, and a sale ordered, at which Herrall became the purchaser, and subsequently obtained a sheriff's deed, and his administrator now claims the property sued for as an innocent purchaser without notice or knowledge or plaintiff's claim or demand. Plaintiff recovered in the court below, and defendant appeals.

B.B. Beekman and A.R. Mendenhall, for appellant.

John H. Hall, for respondent.

WOLVERTON, J. (after stating the facts).

It is urged that the assignments by J.M. Arthur & Co. to the plaintiff transferred their claims or demands only, and that the title to the property notwithstanding remained in J.M Arthur & Co. In this we cannot concur. The contracts are not only evidences of J.M. Arthur & Co.'s demands against Tice, but they contain the conditions upon which he may retain the property, and obtain a perfect title thereto, it having been delivered into his possession with the execution of such contracts. The transactions amount to conditional sales, with delivery of possession, the sole purpose of retaining the bare legal title being to secure payment of the purchaser price. Tice could not be deprived of his possession or right to acquire the title except or some default in his agreements, and, in view of these conditions, we think that the assignments of the contracts carried with them the right of property, together with the right of possession for condition broken. Plaintiff could therefore maintain the action, and it could make no difference whether the defaults occurred before or subsequent to the assignments. Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Schlieman v. Bowlin, 36 Minn. 198, 30 N.W. 879; Lahmers v. Schmidt, 35 Minn. 434, 29 N.W. 169; Burnell v. Marvin, 44 Vt. 277. Ordinarily, the personalty sought to be recovered would be classed as fixtures, and considered part and parcel of the realty to which they are annexed. But where chattels are of such a nature as that they do not lose their distinctive identity by annexation, and do not thereby become so essentially a part of the structure as that their removal will materially injure or destroy the structure, or destroy or unnecessarily impair the value of the chattels, their...