Luhmann v. Schaefer
| Decision Date | 11 September 1940 |
| Docket Number | No. 25311.,25311. |
| Parties | LUHMANN et al. v. SCHAEFER. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.
"Not to be reported in State Reports."
Action by Edward Luhmann and Frank Prendergast, doing business as the Central Wrecking & Supply Company, a co-partnership, against Andrew L. Schaefer, doing business as the Andrew Schaefer Supply & Wrecking Company, for the conversion of lumber and other building materials obtained from the wrecking of a building. From a judgment on a verdict for plaintiff for $450 actual damages and $600 punitive damages, defendant appeals.
Reversed and remanded with directions on condition of remittitur of punitive damages.
S. Sylvan Agatstein, of St. Louis, for appellant.
Francis R. Stout, of St. Louis, for respondents.
SUTTON, Commissioner.
This is an action to recover damages, actual and punitive, for the conversion of lumber and other building materials obtained from the wrecking of an old dwelling house, located at 6215 Etzel Avenue, in St. Louis County.
The trial with a jury resulted in a verdict in favor of plaintiffs for $450 actual damages and $600 punitive damages. Judgment was given accordingly, and defendant appeals.
On June 23, 1937, defendant wrote the Fulton Iron Works, then the owner of the property at 6215 Etzel Avenue, proposing to wreck the building, all materials resulting from the wrecking to become defendant's property, the debris to be left in the basement for filling purposes, and proposing to pay $25 for the privilege of wrecking the building.
On September 18, 1937, after some negotiations with defendant, the Fulton Iron Works wrote defendant giving to him the privilege of wrecking the building, saying, "Please start at once, you to pay $25 for the privilege of wrecking this building." Defendant did not proceed promptly with the work of wrecking the building, though repeatedly urged by the Fulton Iron Works to proceed with the work.
On September 30th, the Fulton Iron Works sold the property to the Mazda Lamp Company and conveyed the same to said company by warranty deed duly executed, acknowledged and recorded. The evidence tends to show that the Mazda Lamp Company had no notice of the prior sale of the building to the defendant.
On October 8, 1937, plaintiffs wrote the Mazda Lamp Company a letter, agreeing to remove the building, to haul away all the material salvaged, to put the rubbish in the basement, and to pay therefor $25 cash in advance. This letter was accompanied by plaintiffs' check for $25. The letter was duly accepted by the Mazda Lamp Company by endorsement at the bottom of the letter. The check was banked and cashed by the Lamp Company.
Defendant commenced the work of wrecking the building on October 14, 1937. At that time defendant did not know that the property had been sold by the Fulton Iron Works or that plaintiffs had purchased the building, and had no knowledge of these facts until October 27, 1937, when he had practically completed the wrecking of the building. On that date plaintiffs discovered that defendant was wrecking the building. Whereupon a controversy arose between plaintiffs and defendant as to who was the owner of the building and entitled to the lumber and other material obtained from wrecking it. A number of conferences were had by plaintiffs and defendant with the representatives of the Fulton Iron Works and the Mazda Lamp Company, but no settlement of the controversy was arrived at. Defendant thereupon completed the work of wrecking the building. He hauled the lumber obtained from the wrecking of the building to his lumber yard located at 3600 Clarence Avenue, in St. Louis.
Defendant assigns error here for the refusal of his instruction in the nature of a demurrer to the evidence. He puts this assignment on the grounds: (1) That plaintiffs did not have title to the building with possession or the right of possession thereof, (2) that the building was realty, not personalty, (3) that there was no sale of the building but a mere agreement to perform services to be paid for by salvage obtained from the building, and (4) that if there was a sale of the building it was executory and did not vest title or right of possession in plaintiffs.
It is settled law that an action in trover does not lie unless plaintiff has title to the chattel with possession or the right of possession thereof. Realty, of course, cannot be the subject of such an action. A building is ordinarily a part of the realty, and retains its character as realty until there has been a severance of it, actual or constructive. There may be a constructive severance by contract.
It is clear that the contract between plaintiffs and the Mazda Lamp Company amounted to a sale of the building and not a mere agreement for the rendition of services. Ordinarily men do not pay for the privilege of rendering services to another. The contract was for the immediate removal of the building. It effectuated a constructive severance of the building and passed the title and right of possession thereto presently to the plaintiffs. It thus became personalty, for which an action in trover lies. Denvir v. Crowe, 321 Mo. 212, 9 S.W.2d 957; Melton v. Fullerton-Weaver Realty Co., 214 N.Y. 571, 108 N.E. 849; Neiswanger v. Squier, 73 Mo. 192; American Clay Machinery Co. v. Sedalia Brick & Tile Co., 174 Mo.App. 485, 160 S.W. 902; Pile v. Holloway, 129 Mo.App. 593, 107 S.W. 1043; Hawkins v. Hersey, 86 Me. 394, 30 A. 14; Straw v. Straw, 70 Vt. 240, 39 A. 1095; Westchester Fire Ins. Co. v. Roan, Tex.Civ. App., 215 S.W. 985.
Besides, in this case there was an actual severance of the building by defendant, and the conversion was consummated subsequent to such severance. So that if it could be said that there was not a constructive severance by the contract of the parties so as to convert the building into personalty, the actual severance by defendant accomplished that end.
The instruction in the nature of a d...
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