McLain Investment Co. v. Cunningham
| Decision Date | 08 May 1905 |
| Parties | McLAIN INVESTMENT COMPANY, Appellant, v. M. E. CUNNINGHAM et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. J. W. Alexander, Judge.
Harris L. Moore for appellant.
(1) The two declarations of law requested by appellant should have been given, they were applicable to the facts in evidence in the case and stated correct principles of law and although there was other evidence in the case on which the court might have found against appellant, still a party to a suit is entitled to have his evidence considered under correct theories of law. Ashby v. Ashby, 59 N. J. Ch. 536; Pond & Hasey v. O'Connor, 70 Minn. 266; Mfg Co. v. Carroll, 72 Mo.App. 315; Tyler v. White, 68 Mo.App. 607. (2) The declarations of law given for defendant stated the law incorrectly and were without basis of fact. (3) A steam heating boiler, connected with pipes running through the floors and partitions of a building having no other means of heating, and that is useless for a large part of the year without such boiler, is such a fixture as cannot be removed even by a tenant. Pond & Hasey v O'Connor, 70 Minn. 266.
William A. Craven and Simrall & Trimble for respondents.
(1) Where both the law and the facts are submitted to the court, its finding will not be disturbed by the appellate court if there is evidence to support it; and if the law applicable to the facts as found is correctly declared, the refusal of a proper declaration will not constitute reversible error. Cook v. Farrah, 105 Mo. 508. (2) In this case the evidence as to the circumstances under which the boiler was placed in the building by the tenant--that is--the evidence bearing on the question of its being a fixture or not--was conflicting. The court might have found either way. The declarations given show that it found the facts contended for by respondents and gave correct declarations, applicable to those facts. In such case the judgment will not be reversed. Myers v. Miller, 55 Mo.App. 347-8. (3) The cases cited by appellant do not sustain appellant's contention that the case should be reversed.
This is a suit in replevin for the possession of a certain steamheating boiler used for the purpose of heating a hotel in the city of Excelsior Springs, which at the time of the institution of the suit was occupied by defendants as plaintiff's tenants. Defendants took possession of the building in the fall of 1901 under a lease for two years by which they accepted the building and agreed to keep it in repair and to turn it over at the expiration of their lease in as good condition as when they received it.
At the time defendants took possession of the building there was in the basement of the same, set in a pit, a heating boiler consisting of different sections attached to pipes that ran through the floors and partitions to the different rooms therein. This boiler was the means of heating the building and was adapted to no other purpose. In order to remove the boiler it was necessary to unscrew the attachments that connected it with the pipes and to then remove it from the pit by sections. The boiler was not much used in the winter of 1901-02 owing to an insufficient supply of water. In the following spring it was discovered the boiler was almost useless, as many of the sections had bursted, which had resulted from the freezing of water therein. The evidence was conflicting as to whether its condition was brought about because plaintiff had left water in it when it was turned over to defendants, or caused by the neglect of defendants by letting water into it and permitting it to stand during the winter.
In the summer of 1902, defendants removed said boiler and replaced it with the one in controversy. It was shown that at the time of putting in the new boiler, it was their intention to remove it before the expiration of the lease and replace the old one. There was evidence tending to show that plaintiff agreed that defendants might remove the boiler in question at the expiration of their lease. And they were so removing it with the view of replacing the other when plaintiff instituted this suit.
A jury was waived and the case was tried before the court. The finding and judgment being for defendants, plaintiff appealed. The court refused the following declarations of law asked by the plaintiff:
1. "If the defendants accepted a lease from the plaintiff, of a hotel building equipped with a steam heating plant fed by a boiler, and covenanted to keep the premises in repair and so return them to the landlord, and during his term defendant removed the boiler and substituted a new boiler in its place, and if a boiler was necessary in the use of the premises for the purposes for which they were adapted, then such new boiler became a fixture in the building."
2. "Fixtures to be capable of removal by a tenant, must be additions made by the tenant to the property of the landlord, and not substitutions for essential parts of it, which the tenant has removed."
The court gave the following at the instance of defendants:
1. "The court declares the law to be that the boiler in plaintiff's house at the time defendant rented it was a fixture and if defendants removed it because inadequate, and put the boiler in controversy in its place, with the intention of removing it before his lease expired and restoring the original boiler to its original position, and was proceeding to remove it for the purpose of replacing the original boiler before his lease expired, when plaintiff's suit was instituted, then the finding should be for the defendants."
2. "The court declares the law to be that if the defendants removed the boiler in plaintiff's house at the time they rented it because it was inadequate, and replaced it with the boiler in controversy, with the understanding with plaintiff that they should be permitted to remove the latter before the expiration of their lease, and were proceeding to do so before the expiration of their tenancy, when plaintiff's suit was instituted, then the finding should be for the defendants."
The plaintiff contends that the court committed error in not giving his said declarations of law. The substance of these declarations is that the boiler in question was a fixture. And the substance of defendants' declarations is that, if they put it into the building with the intention of removing it before the expiration of their lease, or that plaintiff agreed that they might remove it before that time, they were entitled to remove it.
It is often a difficult question to determine what is and what is not a fixture. The books contain many...
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Kolb v. Golden Rule Baking Co.
...Co. v. Hermann Savings Co., 168 Mo. App. 549, 153 S.W. 1094; Pile v. Holloway, 129 Mo. App. 593, 107 S.W. 1043; McLain Investment Co. v. Cunningham, 113 Mo. App. 519, 87 S.W. 605; Priestly v. Johnson, 67 Mo. 632; Lowenberg v. Bernd, 47 Mo. 297.] Cases discussing what are and what are not re......