Nadolski v. Peters

• Decision Date: 07 January 1952
• Docket Number: No. 9,9
• Citation: 50 N.W.2d 744,332 Mich. 182
• Parties: NADOLSKI et al. v. PETERS et al.
• Court: Michigan Supreme Court

Page 744

50 N.W.2d 744

332 Mich. 182

NADOLSKI et al. v. PETERS et al.

No. 9.

Supreme Court of Michigan.

Jan. 7, 1952.

J. Elmer Cresswell, Detroit, for appellants.

Hugh K. Davidson and Wayne Lusk, Detroit, of counsel,

John F. Langs and R. F. Molyneaux, Detroit, for appellees.

Before the Entire Bench.

CARR, Justice.

This case involves the ownership of fixtures installed by tenants of leased property. The plaintiffs are the vendees under a land contract for the purchase of certain real estate in the city of Highland Park. Located on the property is a building adapted for use for limited factory purposes. At the time plaintiffs entered into their contract, on May 15, 1945, said building was occupied by defendants as tenants of the prior owner. The record indicates defendants found, after they became such tenants, that the heating system was inadequate, and that they added three Modine steam unit heaters which were attached to the building and incorporated in the heating system by connections with steam pipes previously installed. When they vacated the property, following the purchase by the plaintiffs, defendants removed said heating units from the premises. Claiming that such action was without right or authority, and that the fixtures were a part of the realty, plaintiffs instituted replevin proceedings, recovered possession of the units under the writ, and placed them in their former positions as parts of the heating system in the building in question.

Defendants by their answer denied that the Modine units were a part of the realty, asserting that they were trade fixtures and as such remained the property of defendants with the consequent right of removal. Return of the property in the event that their claim was sustained was waived, defendants electing to take the value, which they claimed to be $665, with interest, in lieu of such return. The case was tried before a jury. At the close of the proofs counsel for plaintiffs moved for a directed verdict which the trial court denied on the ground that there were issues of fact which he was required to submit to the jury for determination. Apparently this was in accord with defendants' position at the time. No motion for a directed verdict in their favor was made. The jury returned a verdict for the plaintiffs, finding them to be the owners of the property in dispute. Recovery for damages which plaintiffs claimed they had sustained by reason of the removal of the fixtures and the necessity of reinstalling them was denied.

Judgment was entered on the verdict and defendants have prosecuted an appeal. In their reasons and grounds therefor they have alleged errors in the receipt of testimony offered by plaintiffs, in the exclusion of proof offered by defendants as to statements claimed to have been made to plaintiffs' vendor by the prior owner from whom he purchased, and in the charge of the court. In his brief counsel for appellants has not urged there alleged errors as grounds for reversal. It must be assumed, therefore, that they are abandoned. However, the matters referred to have been given the consideration to which they are entitled in connection with defendants' argument that the competent proofs in the case established their right to the property as a matter of law.

Appellants did not move for a new trial and are, in consequence, not entitled to urge on this appeal that the verdict of the jury was against the great weight of the evidence. Peters v. Aetna Life Ins. Co., 282 Mich. 426, 276 N.W. 504; Rich v. Daily Creamery Co., 303 Mich. 344, 6 N.W.2d 539. Our examination of the record brings us to the conclusion that the claim that there was insufficient evidence to support the verdict of the jury is not tenable. It is a fair conclusion from the proofs that the heating system in the building was inadequate to permit proper use of the property for any purpose for which it was suitable. The Modine units were attached to and made a part of the heating system. It was possible to remove them without doing serious damage to the portion of the system remaining, or to the building itself, but one inspecting the property was entitled to assume from the situation actually existing that the furnace, boiler, pipes, radiators, and these Modine units, were all parts of the heating equipment installed and maintained for the purpose of rendering possible the use of the property for any purpose to which it was reasonably adapted.

Plaintiff Herzog testified that before making the contract for the purchase of the property he talked with defendant Peters and asked him what property within the building the tenants claimed as their own. In answer to the question the witness claimed that defendant enumerated certain items but made no mention of the Modine heaters or any other part of the heating system. It was the claim of the plaintiffs also that they sought from defendants a written statement covering the matter, and that defendants in response to a request therefor addressed a letter to plaintiffs' vendor setting forth the specific items of personal property on the premises that they claimed the right to remove on vacating. This letter was offered in evidence and appears in the record. No reference was made therein to the Modine heater units. Objection was made by counsel for defendants to the introduction of the letter on the ground that it was not addressed to plaintiffs but rather to their vendor. Obviously, however, it was a statement against interest. De...