Potts v. Biggs & Co.

• Decision Date: 28 January 1936
• Docket Number: Case Number: 22837
• Citation: 1936 OK 90,54 P.2d 341,176 Okla. 96
• Parties: POTTS et al. v. BIGGS & CO.
• Court: Oklahoma Supreme Court

1936 OK 90

54 P.2d 341

176 Okla. 96

POTTS et al. v. BIGGS & CO.

Case Number: 22837

Supreme Court of Oklahoma

Decided: January 28, 1936

Syllabus

¶0 1. FIXTURES - Rule for Determining Whether Machinery Is Fixture or Chattel.

Rule in determining whether machinery is fixture or chattel, remains chattel or becomes fixtures, is as follows: First, by determining whether the machinery has been actually annexed to realty, or something appurtenant to realty; second, whether machinery is applicable to use or purpose to which that part of realty with which it is connected is appropriated; third, intention of party making annexation to make permanent annexation to freehold.

2. APPEAL AND ERROR - Review - Conclusiveiness of Finding That Gin Machinery Is Personalty.

Where there is sufficient evidence tending to support the finding of the trial court that machinery connected with the ginning of cotton and installed in a gin is personal property, such finding of fact will not be disturbed upon review.

3. CONVERSION - Demand not Prerequisite to Suit Where Demand Useless.

Demand is not a necessary prerequisite to the commencement of an action for wrongful conversion where the act of conversion has been consummated and demand would be useless.

4. APPEAL AND ERROR - Review - Lack of Exceptions - Taking Case From Jury After Demurrer and Motion for Directed Verdict by All Parties.

Action of court in taking case from jury after demurrer and motion for directed verdict by all parties will not be considered upon review where no exception is taken to such ruling.

Appeal from District Court, Custer County; E.L. Mitchell, Judge.

Action by Biggs & Company against T.F. Potts et al. Judgment for plaintiff, and defendants appeal. Affirmed.

A.J. Welch, for plaintiffs in error.

Meacham, Meacham & Meacham, for defendants in error.

PER CURIAM.

¶1 This was an action in the district court of Custer County for conversion brought by Biggs & Company, a Texas corporation authorized to do business in this state, against T.F. Potts, J.W. Garnett, and Security National Bank of Clinton, Okla.

¶2 The parties will be referred to as they appeared in the trial court.

¶3 On the 25th day of July, 1929, the plaintiff sold and delivered to the defendant T.F. Potts one 14-inch left-hand Lokey Burr Extractor (a mechanical device used in conjunction with cotton gins), which was installed in the gin-house of the defendant Potts at Vici, in Dewey county. Two promissory notes of even date, for $550 each, were executed as a part of the purchase price, and an instrument described by plaintiff as a chattel mortgage was likewise executed and filed for record in the office of the county clerk of Dewey county.

¶4 Plaintiff alleges in the second cause of action that a certain Stacey all steel dropper (another device connected with the ginning of cotton) was sold to the defendant Potts on August 6, 1929, under similar circumstances, delivered to him and installed in his gin at Vici, and that for this purchase price he executed his promissory note of $198.65, and executed an instrument described by plaintiff as a chattel mortgage, which was likewise recorded in the office of the county clerk of Dewey county.

¶5 Subsequent to the default by defendant Potts in the payment of these notes, and before any action was taken to foreclose under the recorded lien, it was alleged that the defendant Potts sold his gin, and delivered along with it this property to defendant J.W. Garnett, acting through the defendant Security National Bank of Clinton, for the consideration of $13,000, which sum was deposited in the defendant bank and retained by it to the exclusion of the plaintiff, and that this action constituted a conversion for which plaintiff seeks recovery herein.

¶6 As a matter of defense, joint answer was filed by J.W. Garnett and the Security National Bank, in which the jurisdiction of the court was first attacked on the theory that, that property being real, the venue should have been in Dewey county rather than in Custer county, the residence of the several defendants.

¶7 The defendants' principal defense in based upon their claim that when this particular property was sold it was attached to the gin building and to the machinery therein, and hence became a part of the real estate belonging to the defendant Potts, and afterwards contracted and sold as such to the defendant Garnett. It was also defendants' contention that even if the machinery was personal property, no demand had ever been made by the plaintiff as a prerequisite to an action for conversion. The defendant bank's position is that it acted as the go between to effect the sale between Potts and Garnett and protect itself in the collection of a note secured by real estate mortgage on the said property of defendant Potts in the sum of $9,031.73. Defendant bank alleges that after receiving the purchase price of $13,000, the sum due it was deducted and the sum of $3,368.33 due the Chickasha Cotton Oil Company secured by a note and mortgage on the gin property of the defendant Potts was paid; that the defendant bank paid $6.05 for recordation of papers, and delivered to defendant Potts the balance of $593.89.

¶8 Defendant Potts did not plead, but we find him present and represented by counsel at the time of the trial, hence we shall treat all the defendants as being properly in court and subject to the determination of all issues herein involved.

¶9 This case was presented to a jury. At the conclusion of all of the evidence both sides filed their demurrers and moved for a directed verdict. This was taken by the court as a justification to withdraw the case from the jury. The court after discharging the jury took the matter under advisement, heard arguments, considered authorities, and rendered a judgment for the value of the property converted, in the sum of $1,635.02, bearing interest at the rate of 6 per cent. per annum from April 13, 1931, together with costs. From this judgment the defendants have appealed to this court, basing their appeal on the following five propositions of law set out in their own language as follows:

"1. The court erred in overruling the demurrer to the petition, the objection to plaintiff's evidence, the demurrer to plaintiff's evidence, the motion of defendants for a directed verdict, the motion for a new trial, and in rendering judgment for the plaintiff, for the reason that the machinery alleged to have been converted was real estate as defined in sections 8395-8397 and 8555, C. O. S. 1921, and was not subject to conversion, and plaintiff's recorded chattel mortgage created no lien on the same as against bona fide real estate mortgagees and purchasers.

"2. Under plaintiff's petition and evidence there could be no conversion without previous demand, even had the machinery been personal property, and there was no attempt to plead or prove a demand before suit, but, on the other hand, plaintiff's evidence affirmatively shows that no demand was made.

"3. There was no controverted fact upon which the court could exercise its discretion and judgment in rendering judgment for plaintiff, and its judgment was in direct conflict with the undisputed evidence and the law.

"4. It was error for the court, at the close of the case when both parties moved for a directed verdict, to assume that each party waived a jury by moving for a directed verdict, and in discharging the jury and thereafter making findings of fact and rendering judgment for plaintiff without passing upon said motions. Such action had the effect of depriving the defendants of their right to a jury trial; and, under the facts of this case as shown by the record, deprived the defendants of the benefit of findings of fact by the court.

"5. If this court finds there were issues of fact presented (the trial court says there were none, R. 182-183), and that a jury trial was waived, then we insist that the trial court's judgment is wholly unsupported by the evidence, and is in direct conflict with the plain and undisputed evidence and the law."

¶10 It is our view that the very axis upon which this whole case turns is whether the property in question is to be treated as personal or real. The several other questions are trivial in comparison to this perplexing problem challenging our immediate analysis.

¶11 In Seminole Supply Co. et al. v. Seminole Refining Co., 173 Okla. 32, 45 P.2d 1084, recently decided, this court said:

"The rule in determining whether

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