Red Diamond Clothing Co. v. Steideman

• Decision Date: 30 October 1906
• Citation: 120 Mo. App. 519,97 S.W. 220
• Parties: RED DIAMOND CLOTHING CO. v. STEIDEMAN et al.
• Court: Missouri Court of Appeals

97 S.W. 220

120 Mo. App. 519

RED DIAMOND CLOTHING CO. v. STEIDEMAN et al.

St. Louis Court of Appeals. Missouri.

October 30, 1906.

Rehearing Denied November 13, 1906.

1. QUIETING TITLE—PERSONAL PROPERTY.

A. bill to quiet title to personalty in possession of plaintiff will not lie.

2. PLEADING—AMENDMENT—DIFFERENT CAUSE OF ACTION.

The original petition asked for equitable relief. An amended complaint set forth a second count, stating a cause for conversion which accrued after the filing of the original petition. Held, that the second court was properly stricken.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the Red Diamond Clothing Company against Mary A. Steideman and others. From a judgment for defendants, plaintiff appeals. Affirmed.

There were an original and two amended petitions filed in this cause. The first petition contained but one count, and asked for equitable relief only. A demurrer to this petition was sustained by the court, whereupon an amended petition was filed, in which the one count in the original petition was stated with greater elaboration and a second count in conversion added. The court sustained a demurrer to the first count and a motion to strike out the second one. Plaintiff amended a second time, filing the following second amended petition (omitting caption and signatures): "Plaintiff, the Red Diamond Clothing Company, for its amended petition, leave to file the same being granted by the court, states that it is, and was at all the dates and times at which it is said herein to have done any acts, a business corporation, duly and lawfully organized and existing under the laws of the state of Missouri, and having power to do all the acts hereinafter mentioned as having been done by plaintiff. Plaintiff further states that it became a tenant of the defendants of certain premises in the city of St. Louis by assignments and transfers from time to time of the interest of the lessees in a certain lease dated July 31, 1899, by said defendants to the Wright & Green Manufacturing Company as lessees, whereby said premises were leased to said last-named company for a term of years expiring December 31, 1904, upon agreements and conditions as to rental, etc., which have been fully performed to this date by plaintiff and the said lessees, and by those through whom, by consent of defendants, plaintiff has succeeded to its rights. Said premises are situated in the said city of St. Louis, and are described in said lease as follows: The fourth story and basement brick building known as and numbered 825 and 827 North Eighth street, in said city of St. Louis. That at the time of filing the original petition herein, and up to said December 31, 1904, the said premises were used by plaintiff, and prior thereto were used by said tenants successively as a manufacturing establishment or factory for business purposes. Plaintiff further states that with said leasehold of said premises plaintiff acquired, by purchase from said Wright & Green Manufacturing Company, and was in full possession thereof at the time of bringing this suit, a number of articles of machinery connected with said building, and a part of the plant thereof, including an engine, boiler, and equipments thereof, steam pump, blow-off tank, and sprinkling apparatus and steam-heating apparatus, and coils, and the connections thereof, with all business appliances used in the said factory as part of the machinery and appliances for manufacturing said business prosecuted by the plaintiff in said premises. That said machinery, boiler, steam pump, blow-off tank, sprinkling apparatus and steam-heating apparatus, and the coils and the connections thereof, with other mechanical appliances for carrying on the manufacturing business in said building, had been theretofore acquired by the said Wright & Green Manufacturing Company from the Milius Boot & Shoe Manufacturing Company, as part of the plant in said premises, by purchase for a valuable consideration, and was sold by said Wright & Green Manufacturing Company to the plaintiff herein as part of said plant, and was treated by all the said tenants as personal property, and subject to be removed from said building at the expiration of the lease thereof. Plaintiff further states that the defendants, well knowing that the plaintiff had purchased and was the owner of said articles of machinery, to wit, said engine, boiler, and equipments, steam pump, blow-off tank, sprinkling apparatus and steam-heating apparatus and coils, and the connections thereof, with all the mechanical appliances used in said factory, claimed that said articles of machinery were part of the realty so occupied by plaintiff, and was so attached thereto as to become fixtures and real property, and that the defendants owned the same, and intended to prevent plaintiff from removing the same from said premises, and had asserted to other persons that they owned said articles of machinery, and denied that plaintiff had any title thereto. That in consequence of said wrongful claim of title by defendants to said machinery, plaintiff was deprived of the full enjoyment thereof, and that by reason of said unfounded claim of defendants, which is contrary to equity and good conscience, the plaintiff was prevented from selling said engine, boiler, and equipments, steam pump, blow-off tank, sprinkling apparatus, and steam-heating apparatus and coils, and the connections thereof, at a large profit; the purchaser having refused to purchase the same by reason of said unwarrantable and inequitable claim of the defendants that they belonged to defendants. That said defendants continued to make such claim, and notified the plaintiff that they would prevent him from removing said property from said building up to the time when said lease expired, and at the said time refused to allow the plaintiff to remove the articles and property aforesaid from said premises, claiming that the...