Lesser v. Bridgeport-City Trust Co.
| Decision Date | 02 March 1938 |
| Citation | 198 A. 252,124 Conn. 59 |
| Court | Connecticut Supreme Court |
| Parties | LESSER v. BRIDGEPORT-CITY TRUST CO. |
Appeal from Superior Court, Fairfield County; Earnest C. Simpson Judge.
Action by Eli Lesser against the Bridgeport-City Trust Company for damages for the alleged conversion of certain bowling alleys pool tables, and accessories. From a directed verdict for plaintiff for $451 as the value of the pool tables, and for defendant as to the bowling alleys, plaintiff appeals.
No error.
Where bowling alleys were installed in mortgaged building, alleys each weighed 6 tons, rested on specially prepared foundations, and could be removed without damage to building but floor of building would have to be reconstructed conditional sales contract stated that alleys were personalty, second mortgagee foreclosed on realty, conveyed premises, and received another second mortgage thereon which stated that alleys were part of realty, second mortgagee went into possession upon default of mortgage, first mortgagee foreclosed, and second mortgagee surrendered possession, alleys were part of realty as a matter of law at time first mortgagee foreclosed, so that first mortgagee was not liable for conversion.
David R. Lessler, of Bridgeport, for appellant.
Richard S. Swain and Martin F. McKeon, both of Bridgeport, for appellee.
Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.
The plaintiff was formerly in possession and claimed to be the owner of twelve bowling alleys and six pool tables and accessories located in a building owned by the defendant as foreclosing mortgagee. The defendant refused to turn these articles over to the plaintiff. On a trial to the jury, a verdict was directed for the plaintiff for the agreed value of the pool tables and accessories and for the defendant on the issue as to the bowling alleys. The plaintiff appeals from the refusal of the court to set aside this verdict on the ground that the latter action was erroneous. The defendant is assignee of the original mortgagee. Both assignor and assignee are hereafter referred to as the defendant.
The parties are agreed as to the issue of law involved in this ruling. If these bowling alleys were a part of the realty as a matter of law, the ruling was correct. If there was evidence to go to the jury on their character as personal property, not covered by the defendant's mortgage, the ruling was erroneous. In testing the correctness of a directed verdict, the evidence must be considered in that aspect most favorable to the plaintiff. Sedita v. Steinberg, 105 Conn. 1, 5, 134 A. 243, 49 A.L.R. 154; Szabados v. Charlos, 119 Conn. 537, 538, 177 A. 719.
The jury could reasonably have found that in 1927 Tischler and Demas bought a lot on State street in Bridgeport. There was an old house on the lot. This was torn down. On March 24, 1927, Tischler and Demas applied to the defendant for a loan of $35,000. The application stated that the building to be erected would be used for two stores and bowling alleys. Plans showing the construction for these purposes were submitted to the defendant with this application. On June 3, 1927, the owners gave a construction mortgage of the property to the defendant for $30,000. On July 6, 1927, they gave a second mortgage to the plaintiff for $13,800. Meanwhile the construction of the building had proceeded according to plan, and on July 19, 1927, the owners purchased twelve bowling alleys and equipment from the Brunswick-Balke-Collender Company for $11,000 on conditional bill of sale. The alleys were designated in the bill of sale as personal property.
The alleys were then installed. They weigh six tons each and rest upon specially prepared foundations, but are fastened to the foundations only by screws, although some of the equipment incidental to them is nailed to the floor. They can be removed without damage to the building but are of comparatively small value under those circumstances. The foundations are, however, so constructed that the space occupied by the alleys is practically useless for any other purpose without substantial reconstruction of the floors.
After the alleys were installed the property was transferred to a corporation and the interest in the alleys as personal property under the bill of sale was transferred to the corporation with the consent of the vendor. On January 25, 1929, the corporation paid all sums due under the bill of sale. The corporation became indebted to the West Side Bank, and its interest in the bowling alleys was transferred to the bank. Payments due under the plaintiff's mortgage were in default and he began foreclosure proceedings. An agreement was then made that the plaintiff would foreclose the mortgage and convey the premises to the Hancock Corporation, a corporation connected with the West Side Bank, which was to give him back a second mortgage. As incident to this mortgage the plaintiff and the Hancock Corporation entered into an agreement that the latter release any claim it had to remove the alleys from the building and that they should be considered by the parties to the agreement as a part of the realty and not as removable fixtures. Accordingly, there is an agreement in the mortgage that the bowling alleys, pins, balls, and any and all fixtures attached to the building now or hereafter are to be a part of the mortgaged premises. Subsequently, payments on the mortgage then held by the plaintiff being in arrears, he went into possession of the premises. A default occurring in the payment due on the first mortgage held by the defendant herein, it foreclosed; the plaintiff in this action being one of the defendants. After the time set for him to redeem he surrendered the keys of the building to the defendant herein. Five months later he demanded the return of certain equipment in the building, including the alleys, and this was refused. He then brought the present action for conversion.
The character of these alleys as real or personal property should be determined as of the date when they were placed in the building. The defendant was not a party to any of the subsequent transactions. This question has been productive of much litigation and various general...
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