Lewis v. E.F. Schlichter Co.

• Decision Date: 01 December 1920
• Docket Number: 26.
• Citation: 112 A. 282,137 Md. 217
• Parties: LEWIS v. E. F. SCHLICHTER CO.
• Court: Maryland Court of Appeals

112 A. 282

137 Md. 217

LEWIS v. E. F. SCHLICHTER CO.

No. 26.

Court of Appeals of Maryland

December 1, 1920

Appeal from Circuit Court, Frederick County; Hammond Urner and Glenn H. Worthington, Judges.

"To be officially reported."

Action by the E. F. Schlichter Company against Charles A. Lewis. Judgment for plaintiff, and the defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Frank L. Stoner and Samuel A. Lewis, both of Frederick, for appellant.

Jacob Rohrback, of Frederick, for appellee.

OFFUTT J.

This case involves the appellee's title to a silo located on a farm near Sabillasville in Frederick county, and its material facts may be thus summarized: On March 1, 1917, Albert Anderson, who then occupied the farm in question, bought from the appellee, for $297, under a contract called a "lease," a silo, to be shipped to him at Blue Ridge Summit. The sale was made upon the following condition expressed in the contract, that is, that-

"The title of said silo or *** roof shall be held by the E. F. Schlichter Co., remaining movable property, and that a lien is retained by the company until fully paid for according to the terms of lease."

These terms were "cash upon receipt of above goods, or within 30 days from date of invoice, or only on their order." At that time Albert Anderson, Katie M. Anderson, and Alvin Anderson owned the farm, but the nature or extent of their respective interests is not disclosed by the record.

On May 13, 1918, and February 13, 1919, respectively, execution was issued on two judgments against Albert Anderson, Katie M Anderson, and Alvin Anderson, and under these writs the sheriff of Frederick county advertised, and on April 1, 1919 sold the farm at public auction to Charles A. Lewis, the appellant. On March 28, 1919, the contract of sale was recorded in the "Conditional Contracts of Sale Docket" of Frederick county.

Shortly after he received it Albert Anderson erected the silo on the farm which he then occupied, and at the time the farm was sold it was still there. On April 1, 1919, the day on which the farm was sold, the appellee filed in the circuit court for Frederick county, a claimant's suit against the judgment creditors in the cases in which the writs of execution had issued, and thereupon the sheriff notified the auctioneer selling the property not to sell the silo with the farm, but to reserve it. The auctioneer, in accordance with this notice, in offering the property for sale announced in the presence of the appellant, who was at the time five or six or seven feet away, that the silo would not be sold, but would be reserved. This announcement was in a tone loud enough to be heard by the appellant, and was in fact heard by at least one other witness who was farther away. These facts were controverted by the appellant, who denied that the announcement was made, but as we are not called upon to review that conflict no opinion will be expressed in regard to it. Upon a trial of the claimant's suit judgment was entered on September 3, 1919, in favor of the appellee. Some time during the same month the appellee's agent went upon the appellant's property to remove the silo, and while so engaged was approached by the appellant, who told him he could take it away, that there would be no trouble, but before he removed it the appellant withdrew this permission, and refused to allow him to remove it. The appellee thereupon, on the 22d of September, 1919, instituted this action in replevin.

The silo consisted of a number of staves, tongued and grooved and bound together by round iron hoops and iron lugs, and was shipped in three sections, ready to be set up. It is placed on a cement foundation, in which are embedded anchor bolts. Guy wires are attached to these bolts and to the top of the silo, and then tightened by means of a turn buckle until the whole is rigid and firm. From this silo a chute was constructed for convenience in transferring the ensilage from the silo to a barn on the property.

The record contains three exceptions, the first two of which relate to the admissibility of evidence and the third to the court's rulings on the prayers.

In the course of the trial the papers and docket entries in the claimant's case were admitted in evidence by the court over the objections of the appellant, and these rulings are the subject of the first and second exceptions. At the time this evidence was offered the auctioneer had already testified that before he sold the property he had been told by the deputy sheriff to announce publicly that he had just "received from the sheriff a telephone message that a property claim had been filed on that silo, and the sale would be subject to that property claim, and the silo would be reserved," and that when he made the announcement at the sale the appellant was near enough to have heard him. It was both relevant and material for the appellee to have shown that he claimed the silo before the appellant bought the farm on which it was situated, and that the appellant knew of this claim before he purchased the property, and evidence that he had filed a claimant's suit in the same court from which the writs of fieri facias issued under which the farm was sold, and that the appellant had actual notice of the pendency of this suit, tended to prove such facts, and was properly admitted.

The appellant offered no prayers; the appellee offered seven, of which the court granted four and refused three, and its action in granting these four prayers is the subject of the third exception.

The plaintiff in its declaration alleged that the defendant took and unjustly detained one silo, which the plaintiff owned. In his pleas the defendant denied the taking, and claimed title to the silo. The plea of non cepit being more or less meaningless and "practically useless in this class of cases" (1 Poe, Pleading, par. 253), the only issue in the case was the title to the property, and the determination of that issue depended upon whether the silo was to be regarded as a "fixture"; that is a personal chattel which could be severed and removed by the party annexing it to the freehold (Bouvier L. Dict.), or as a chattel which had become so connected with the soil as to become a part of the realty, and the lower court, through the four prayers granted at the instance of the plaintiff, instructed the jury as to the principles of law applicable to the facts relating to these questions, and the correctness of the instructions so granted will now be examined.

By the plaintiff's first prayer the jury were told that if they found the silo was the property of the plaintiff at "the time of the sale" to the defendant of the farm where it was located, and that it was expressly excepted from said sale, and that the defendant purchased the interest of Anderson, the judgment debtor in the farm, and took a deed for it, knowing the silo was not to be his property, then their verdict should be for the plaintiff. The appellant's objection to this prayer is that it submits to the jury a question of...