Pearson v. Harper
| Decision Date | 20 May 1964 |
| Docket Number | No. 9327,9327 |
| Citation | 87 Idaho 245,392 P.2d 687 |
| Parties | Z. L. PEARSON and Bertha Pearson, husband and wife, Plaintiffs-Respondents, v. Clifford H. HARPER and Mary C. Harper, husband and wife, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Gigray & Boyd, Caldwell, for appellants.
Dunlap, Rettig & Rosenberry, Caldwell, for respondents.
Mr. and Mrs. Pearson, plaintiffs-respondents, the owners of a certain building constructed in 1950, by a written agreement, leased it to Mr. and Mrs. Mortenson for a ten year term ending July 15, 1960, at a rental of $150.00 per month, plus all taxes. The Mortensons conducted a drug store business in the leased premises until July 1, 1951, when they assigned their lease and sold their stock of trade, fixtures and personal property used in conducting the business to Mr. and Mrs. Harper, the defendants-appellants herein.
In December, 1952, a modification of the original written lease was entered into by the Pearsons and Harpers, by the terms of which modification the rental payments were increased to $165.00 per month, and providing that the tenants pay taxes on the personal property only, and not on the real property.
The lease agreement provided that the lessees should '* * * return said premises to the lessors at the expiration of this agreement, in a condition comparable to that existing of this date, ordinary wear and tear and damage by the elements excepted.' The agreement also provided that the lessors could, in case of a default in payments, or any breach of terms, give the lessees thirty days notice of the default, and in the event of failure to correct any breach or default, then re-enter the premises. It further provided that if the lessees refused to surrender possession and it become necessary to institute an action to regain possession, the lessees agreed to pay reasonable costs and attorneys fees as fixed by the court, 'and as a penalty for holding, they agree to pay the sum of Ten Dollars ($10.00) per day during the time possession is withheld, either before or after the action aforesaid be commenced.'
During their tenancy the appellants replaced much of the shelving in the store, installed a 3 ton capacity air conditioner, which they later replaced with one of 5 ton capacity. Prior to termination of the lease the parties had discussed the possibility of appellants purchasing the premises, but no agreement was reached. A few weeks prior to the end of the term, appellants commenced the construction of their own new building within which to house their business. The new building was completed on July 30, 1960. On June 10, 1960, respondents served appellants with a written notice to vacate the premises on or before July 16, 1960, and not to remove any fixtures or equipment affixed to the building 'including any cooling apparatus or ducts.'
Appellants continued in possession of the premises after the termination date of their lease; respondents by letter of July 18, 1960, gave appellants a three day unlawful detainer notice, wherein it was stated:
'* * * that by holding over you have forfeited your right to remove any fixtures in the premises by reason of Idaho law, and in removing yourselves from these premises, you are ordered and directed to leave all fixtures in the premises.'
Another letter dated July 26, 1960, of similar tenor was given appellants. On July 30, 1960, after closing hours appellants with a crew of men moved their business to the new store across the street. While in the process of moving, Mr. Pearson came to the store, and objected to the removal of articles of property he considered to be trade fixtures. After intervention of a police officer, he left. The move was completed in the early morning hours of August 1st.
This suit was instituted by the Pearsons to recover damages set out in three causes of action, i. e.; the first to recover the value of fixtures claimed to have been wrongfully removed from the premises; the second, for treble damages for claiming permanent injury to the building; the third, for treble damages claimed for rent for the period of holding over.
The cause was tried by the court on the issues framed by the complaint and answer, and findings of fact, conclusions of law and judgment were entered in favor of the Pearsons. From this judgment, this appeal was taken.
Appellants by their assignments of error attack not only the findings of the trial court for insufficiency of the evidence but also certain of the court's conclusions of law, pertaining to each of the causes of action.
Respondents assert that the assignment of error directed to the insufficiency of the evidence to sustain the court's findings of fact fail to comply with Rule 41 of this court. Among other things such rule states that an appellant's brief 'shall contain a distinct enumeration of the assignments of error'. On previous occasions this court has dealt with similar assertions in the cases of Andrews v. Grover, 66 Idaho 742, 168 P.2d 821, and in Burton v. Bayly, 50 Idaho 707, 300 P. 359. There is merit in respondent's position. The burden is upon the appellant to set forth affirmatively wherein the trial court erred. Clear v. Marvin, Idaho, 383 P.2d 346, 349; Patrick c. Smith Baking Co., 64 Idaho 190, 195, 129 P.2d 651; Baldwin v. Mittry, 61 Idaho 427, 435, 102 P.2d 643.
In disposing of these assignments of error directed to the insufficiency of the evidence, what was stated in Andrews v. Grover, supra, is particularly pertinent here:
'In disposing of appellants' assignments of error, and, generally, the insufficiency of the evidence to support the findings, as enumerated, we think it is sufficient to say that, inasmuch as the action must be reversed and remanded, we deem it unnecessary to comment on the various assignments separately. We take this occasion, however, to advise that said purported assignments failed to conform to the requirements of Rule 52 [now Rule 41], in that they are too general. As stated in Burton v. Bayly, 50 Ida. 707, 300 P. 359:
Appellants by an appropriate assignment question the correctness of the trial court's conclusion of law that the appellants '* * * had to remove any trade fixtures * * * during the continuance of their term of their lease agreement, provided the removal could be effected without injury to plaintiffs premises, or unless the thing, by the manner in which it was affixed, had become an integral part of the premises; and that upon the termination of the lease agreement plaintiffs became the owners of all trade fixtures of defendants not removed from plaintiffs building * * *'. Consideration of the merits of this assignment involves I.C. § 55-308, which provides:
'A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for the purposes of trade, manufacture, ornament or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.'
The primary question thus presented is whether as a matter of law failure of a tenant to remove trade fixtures during the term of his lease automatically converts ownership of the fixtures to the landlord.
In the instant action the trade fixtures involved were not removed by the tenant prior to July 15, 1960, when the lease by its terms expired, but were removed while the tenant still retained possession of the premises. The lease itself made no reference to removal of trade fixtures.
In Bush v. Havird, 12 Idaho 352, 86 P. 529, this court held that a landlord who had terminated a lease for failure to pay rent, was the owner of the trade fixtures when the tenant did not remove or attempt to remove any of the fixtures he placed in the building. In that case the tenant had relinquished possession to the landlord. The action was not one between a tenant and landlord to determine ownership of the fixtures, but was one between the landlord and the holder of a chattel mortgage on the fixtures. In deciding the question in favor of the landlord, this court stated:
.
In Fidelity Trust Co. v. State, 72 Idaho 137, 237 P.2d 1058, this court again was presented with a question of ownership of trade fixtures left in a building by a tenant after surrender of possession of the premises on termination of a lease. Again the action was not one between a landlord and tenant, but was one involving the landlord and a judgment creditor of the tenant seeking satisfaction of his judgment by levy of a writ of execution on the trade fixtures. This court, relying upon the decision of Bush v. Havird, supra, held the landlord was the owner of the trade fixtures.
These two cases (Bush v. Havird, supra, and Fidelity Trust Co. v. State) are...
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...integral part of the premises. I.C. § 55-308.And this Court faced a similar question, under similar circumstances, in Pearson v. Harper , 87 Idaho 245, 392 P.2d 687 (1964). There, tenants operated a drug store on the leased premises and had installed a number of trade fixtures attendant to ......
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...to make the article a permanent accession to the freehold. Rayl, 108 Idaho at 527, 700 P.2d at 570 (quoting Pearson v. Harper, 87 Idaho 245, 256, 392 P.2d 687, 693 (1964) ). Of these three factors, whether the party installing the object had the intention to annex the object to the land at ......
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...Slusser v. Aumock, 56 Idaho 793, 59 P.2d 723 (1936). On appeal the burden of showing error is on the appellant. Perarson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964); Clear v. Marvin, 86 idaho 87, 383 P.2d 346 (1963). The statement of this Court in Burton v. Bayly, 50 Idaho 707, 300 P. 359 ......
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