Royal Store Fixture Co. v. Patten

• Decision Date: 20 March 1957
• Docket Number: 3474
• Citation: 183 Pa.Super. 249,130 A.2d 271
• Parties: ROYAL STORE FIXTURE CO. v. William H. PATTEN and Marie F. Patten, his wife, Appellants.
• Court: Pennsylvania Superior Court

130 A.2d 271

183 Pa.Super. 249

ROYAL STORE FIXTURE CO. v. William H. PATTEN and Marie F. Patten, his wife, Appellants.

No. 3474

Superior Court of Pennsylvania

March 20, 1957

Argued September 28, 1956

Appeal, No. 189, Oct. T., 1956, from judgment of Court of Common Pleas of Montgomery County, April T., 1954, No. 128 in case of Royal Store Fixture Co. v. William H. Patten et ux. Judgment affirmed.

Replevin. Before DANNEHOWER, J.

Verdict for plaintiff; defendants' motions for new trial and for judgment n.o.v. dismissed. Defendants appealed.

Judgment affirmed.

R. W. Tredinnick, with him Frederick B. Smillie, and Smillie, Bean, Davis &amp Tredinnick, for appellants.

Harry M. Sablosky, with him Maxwell Strawbridge, and Fox, Rothschild, O'Brien & Frankel, for appellee.

Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ. (HIRT, J., absent).

OPINION

WOODSIDE, J.

This is an appeal from an order of the lower court dismissing defendants' motions for a new trial and for judgment n.o.v. in an action of replevin without bond brought by the plaintiff, Royal Store Fixture Co. to recover possession of a frozen custard stand and walk-in cooler situated upon the land of the defendants. The case was tried before a jury which returned a verdict for the plaintiff.

On April 13, 1953, plaintiff sold, under a conditional sale agreement, the frozen custard stand, walk-in cooler, and machinery and equipment for use therein to one Zaroff, who had leased the land upon which the property in question is now situate, from the defendants under a five year lease dated March 2, 1953. Plaintiff also on April 13, secured from the defendant William Patten a "landlord's waiver" which, after setting forth a description of the property sold to Zaroff under the conditional sale agreement provided, inter alia, that "the aforesaid equipment shall be exempt from distress for rent as long as the title thereto remains in the Royal Store Fixture Co." Defendants inserted a clause in the waiver agreement providing that the waiver should "in no other way affect the agreement dated March 1, 1953," (March 2).

On April 18, the conditional sale agreement was recorded in the Prothonotary's office of Montgomery County. On April 26, the frozen custard stand was placed and assembled on defendants' land upon foundations provided by defendants' leasee, Zaroff. The building was connected to water and electric lines, and to a cesspool. From the evidence the jury could have found that the building was in no other way affixed to the foundations or to the land.

On August 26, 1953, Zaroff defaulted in his payments under the conditional sale contract, and on October 1 he defaulted in the payment of rent under the lease. On October 3 defendants mailed plaintiff a letter claiming title to the frozen custard stand and walk-in cooler under clause #3 in the lease which provided that the building should become the property of the leasor upon any default in the lease agreement by the leasee.

Appellants contend that this building is real estate as a matter of law and that title is, therefore, in them as owners of the real estate and that, in addition, they are entitled to the building by virtue of clause #3 in the lease.

In the frequently quoted case of Clayton v. Lienhard, 312 Pa. 433, 436-7, 167 A. 321 (1933) it was said: "Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty: (citing). Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intention that they should be considered personalty - to them the ancient maxim 'Quicquid plantatur solo, solo cedit' applies in full force: (citing). Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of the annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable: (citing)."

The appellants contend that the frozen custard stand and walk-in cooler here in question belong to the second class of property which constitutes realty as a matter of law even in the face of an expressed intention that it should be considered personal property.

We are not prepared to say that the erection of a structure of the type here in question makes it realty as a matter of law regardless of the intent of the parties.

Buildings ordinarily fall within the above second class, but there are exceptions. See White's Appeal, 10 Pa. 252 (1849); Kile v. Giebner, 114 Pa. 381, 7 A. 154 (1886). As stated by Judge DANNEHOWER, "A building of light construction, a roadside stand, which is not firmly attached might well be regarded as personalty." 36 C.J.S Fixtures Sec. 11. The frozen custard stand was a relatively small prefabricated structure, 22 feet long, 16 feet wide and 8 feet high. The walk-in cooler was built into the stand. There was ample testimony that the stand was intended to be, and is, easily removable, that it is not attached to its foundations, and that it can be removed either in sections or as an entirety by merely disconnecting the water, electric, and cesspool facilities. It was designed specifically as a frozen custard stand, and not for other use. Under these circumstances we think that the jury's finding that it was personal property was not unreasonable or capricious.

The question of whether the property could be removed without material injury to the building or the land was submitted to the jury under proper instructions. There was ample evidence to sustain a finding by the jury that the frozen custard stand and cooler were removable without material injury to either...