R.H. Thomas Co. v. Lewis, Hubbard & Co.
| Decision Date | 31 October 1916 |
| Docket Number | 3179. |
| Parties | R. H. THOMAS CO. v. LEWIS, HUBBARD & CO. ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 17, 1916.
Rehearing Denied Dec. 13, 1916.
Syllabus by the Court.
Where a chattel sold is not then in a deliverable condition, and the order therefor is executed by the manufacture and construction of the article, the buyer acquires no title thereto until it is delivered in its finished state, although he may have paid therefor in advance.
Where by the agreement anything remains to be done by the vendor to put the goods in a condition in which the buyer is bound to accept them, or in a deliverable condition, performance thereof is a condition precedent to the vesting of title, in the absence of circumstances indicating a contrary intention.
The several parts of a trade fixture, a soda fountain, although purchased by a tenant under an entire contract, duly recorded, reserving title until payment of the purchase price, are not subject to distress and sale for unpaid rent due the lessor until they are constructed and equipped as a soda fountain in readiness for use by the tenant, as agreed by the parties to the contract, although theretofore placed on the leased premises.
Whether a sale of a chattel is complete to pass title, or executory only, is to be determined from the intention of the parties as gathered from the contract, the character of the thing sold, the use for which it is intended, and the circumstances surrounding the sale.
Where the proof in detinue is insufficient to support any verdict other than one finding for the plaintiff, wherefore defendant can suffer no prejudice, a judgment for the possession of the property if it can be had, and if not for the value ascertained by the jury, conformably with section 6, c. 102, Code 1913 (sec. 4403), and identifying it by the description contained in the summons and declaration, is not in such circumstances erroneous merely because the verdict found "for the plaintiff the sum of $523.22"; that amount being within $2 of the value of the property as proved on the trial.
Error to Circuit Court, Kanawha County.
Action by the R. H. Thomas Company against Lewis, Hubbard & Co. and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Burdett & White and Payne, Minor & Bouchelle, all of Charleston, for plaintiffs in error.
Cato & Bledsoe, of Charleston, for defendant in error.
In detinue brought to recover possession of a soda fountain and appurtenances sold by the plaintiff, R. H. Thomas Company, a corporation, to M. Mathews, trading as M. Mathews & Co. under a contract in writing dated February 8, 1913, reserving title to the property until paid for as therein recited judgment for plaintiff for the possession thereof if to be had, or in lieu thereof the value ascertained by the jury, was recovered, and defendants assign error.
The price of the article sold, as stated in the agreement, was $1,195, of which $50 was paid cash, and, except $189, which was to be paid upon "receipt of the bill of lading or tender of the goods," and except the last payment of $44, the residue was to be paid in monthly installments of $24 each, for which notes were executed. The agreement contains this paragraph:
"It is agreed that the apparatus and appurtenances in this order shall remain the absolute property of the R. H. Thomas Company until paid for; and it is further agreed that I (the purchaser) am to keep the property insured until the termination of this contract, loss if any payable to the R. H. Thomas Company as its interest may appear."
The purchaser was a married woman conducting a confectionery in a room leased of J. F. Butts in Charleston, in which the component parts of the fountain were delivered about April 15, 1913. They were assembled and constructed, as virtually required by the contract, by agents of the seller, and installed in the tenement ready for the use intended, about April 24, 1913, the exact date not being definitely ascertained. On that day the contract was duly admitted to record in the Kanawha county clerk's office.
Before final payment of the stipulated price, J. F. Butts caused the tenant's stock of goods and equipment, including the soda fountain and other articles sold Mrs. Mathews by plaintiff at the same time, to be distrained and sold to satisfy arrearages of rent due him for the months of May and June, 1915; W. E. Connell being the purchaser at an amount sufficient to discharge the rent then unpaid, who without removing the property resold it in bulk to Joseph Sahley for $1,325. That sum included the rent arrearage, a judgment of Lewis, Hubbard & Co., an unliquidated account of the Kanawha Drug Company, and the balance due R. H. Thomas Company, as seems to be admitted. Certainly it is not denied. These liabilities Connell paid out of the proceeds of the sale to Sahley, with the exception of the one due the plaintiff.
Out of these facts have arisen various adverse contentions as to the rights and equities of the parties interested. It is argued, first, that, as distress for rent "may be levied on any goods of the lessee * * * found on the premises" (section 11, c. 93, Code [sec. 4137]), the soda fountain, being found thereon, was chargeable by the landlord, unless "when carried on the premises" it was subject to a lien valid against the creditors of the delinquent tenant. If it be conceded that before installation of the fountain its separate parts were subject to distraint for rent then due, the fountain was and remained liable to levy for any rent thereafter accruing while the fountain remained on the leased premises or within 30 days after its removal therefrom. Otherwise stated: If before the installation of the fountain and recordation of the instrument reserving the title the individual factors were liable to distraint for any arrearages of rent then due, the fountain when assembled and installed remained thereafter liable for any subsequent arrearages while it remained on the leased premises and within 30 days after its removal therefrom, but not to exceed in amount one year's rental. Such is the plain intendment of the statute, as manifestly shown by its explicit terms. There is no escape from this conclusion, unless subsequent provisions of the same section furnish the avenue thereof; for "if the goods of such lessee * * * when carried on the premises are subject to a lien which is valid against his creditors, his interest only in such goods shall be liable to such distress," or "if any lien be created thereon while they are upon the leased premises they shall be liable to distress, but for not more than one year's rent." These clauses do not restrict or limit the rights of a purchaser of property of a tenant sold under a distress warrant for rent, except where the property is incumbered by a lien created by the tenant before the property is taken upon the leased premises. In the latter event, the purchaser takes only the interest of the tenant therein. But if a lien valid against his creditors be created by the tenant after the property is taken upon the premises, no such limitations or restrictions are imposed, and the purchaser takes complete title to the property.
There is no merit in the contention that the landlord can acquire a lien upon the property of the tenant while on the leased premises only by the procurement and levy of a distress warrant. The statute, as construed in Anderson v. Henry, 45 W.Va. 319, 31 S.E. 998, and Huffard v. Akers, 52 W.Va. 21, 43 S.E. 124, itself gives the lien, which attaches immediately when the property of the tenant reaches the premises, and continues while it remains thereon and for a period of 30 days after its removal therefrom.
Did the fountain become liable under the statute until its installation in the property occupied by the tenant? Mrs. Mathews evidently did not purchase the constituent factors of a soda fountain; she bought an assembled and installed soda fountain. For the several parts she apparently had no use whatever, and probably could not have assembled them into a completed condition, and did not undertake that task, performance of which doubtless required skill and experience. On the contrary, she required, and it was clearly a part of the contract of sale, that plaintiff should install the fountain in place in the property occupied by her; and not until it had effected that object, as it actually did effect it, can it reasonably be said the fountain as such, the thing she bought and for which she bound herself to pay, was subject to levy for rent then or thereafter chargeable to the tenant, whereby more than her interest therein could vest in the purchaser at a sale under such levy.
That no delivery of the fountain by the seller to the purchaser was intended or effected until it was installed for actual service seems indisputable, as well as the fact, claimed by the plaintiff and not controverted, that such installation and delivery did not occur prior to the date of the recordation of the reservation of title. Indeed, it appears highly probable the work necessary to effect the installation was not completed until April 26th, two days after the contract of purchase was admitted to record. The uncontradicted testimony tends to show with reasonable certainty that the fountain was not equipped for use until after the 24th of that month. B. Mathews, husband of the purchaser, said the ornamental tile wainscoting of the side walls of the room occupied by her, then in course of construction at the instance and expense of the tenant, was not finished until April 26th, and that on that date the fountain had not been installed. Merrifield, a painter employed by Mrs. Mathews, confirmed...
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