Salmon v. Boyer

• Decision Date: 16 June 1919
• Docket Number: 41
• Citation: 213 S.W. 383,139 Ark. 236
• Parties: SALMON v. BOYER
• Court: Arkansas Supreme Court

213 S.W. 383

139 Ark. 236

SALMON v. BOYER

No. 41

Supreme Court of Arkansas

June 16, 1919

Appeal from St. Francis Circuit Court; J. M. Jackson, Judge reversed.

Judgment reversed, and cause remanded.

R. J Williams, for appellant.

The verdict is contrary to the law and the evidence, and the court erred in its instructions to the jury. Taylor, Landl. & Ten. (9 ed.), § 551, 553; 98 Ark. 606; 93 Id 78. The court also erred in refusing to give No. 1 asked by appellant and in allowing the pretended lease to be read in evidence, and the verdict is excessive.

C. W. Norton, for appellee.

The legal status of personal property attached to real estate to be used in connection therewith is determined by the purpose and intent of the parties at the time of putting the articles in position. Agreements that the lessee shall have the right of removal from the freehold have been taken as conclusive that the same are not intended as fixtures. 105 Ark. 638; 86 Id. 503. There is no error in the instructions, and the verdict is supported by the evidence. If there was any error in the instructions it was waived by appellant's failure to make it part of the motion for a new trial. 117 Ark. 198; 174 S.W. 241-244; 87 Id. 640; 90 Ark. 484.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the St. Francis Circuit Court to recover $ 4,174, alleging that appellant had unlawfully converted certain property of that value belonging to appellee.

Appellant filed answer, denying that the property described in the complaint belonged to appellee; that he wrongfully took possession thereof; or that it was of the value alleged.

The cause was submitted to a jury on the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered against appellant for $ 800. From the judgment an appeal has been duly prosecuted to this court.

The substance of the evidence is as follows: On the 24th day of January, 1910, the Heth Cooperage Company, a partnership consisting of J. W. Boyer, S. I. Thompson and M. E. Williams, leased a tract of land in Heth, Arkansas, from the Heth Improvement Company, for the purpose of establishing a cooperage and lumber factory. The lease was for 15 years, signed "Heth Improvement Company, by C. C. Bird, Secretary," on the one part, and "Heth Cooperage Company, by S. I. Thompson, J. W. Boyer and M. E. Williams," on the other part, and contained a provision that the Heth Cooperage Company might remove all buildings and machinery placed thereon at any time on or before the expiration thereof. Appellee testified that the Heth Improvement Company was Bird and Morrison; that they executed the lease to them, and, according to his understanding at the time, were the owners of the land. The lease was introduced in evidence over the objection and exception of appellant. In the year 1910, C. A. Shue constructed a heading plant on the land for the Heth Cooperage Company and placed therein an engine, boiler and all necessary machinery and connections, and a dry kiln about 100 feet from the main shed. The engine was set on a concrete foundation about four feet in the earth, and was securely bolted thereto with bolts six feet long. The boiler was encased in a brick wall resting on a concrete foundation about 13 inches below the surface. The Heth Cooperage Company operated the heading plant until January 1, 1913. S. I. Thompson, in charge of operation, died, and the mill was not thereafter operated. It remained there intact until the spring of 1915, when it burned. During the period of operation, J. W. Boyer visited the plant about once a year. After it ceased operation, he visited the town of Heth in January, 1917, and inspected the property. He returned again in January, 1918, at which time he ascertained that the property had been sold, and appropriated by appellant. Appellee was the surviving partner and entitled to the assets of the Heth Cooperage Company. Appellant purchased the real estate in 1916, from Abston, Wynne and Jackson. Appellant testified that at the time of his purchase he inquired of his grantors concerning the engine, boiler and other heading machinery which had remained in place after the fire, and was told by them that it was a part of the real estate; that he bought the machinery along with the land without notice of appellee's claim to the machinery. The following stipulation appears in the record: "By agreement of counsel, it was admitted that the defendant, Salmon, purchased the land from Abston, Wynne and Jackson; and Abston, Wynne and Jackson purchased it from Hairgrove, and Hairgrove from the Heth Plantation Company, and that Salmon was the owner of the land." Appellant sold a part of the machinery, and converted the other part to his own use. Some of the witnesses valued it at more than the amount recovered, and others at less.

The cause was sent to the jury upon the assumption that the undisputed evidence showed that appellee was the owner of the engine, boiler and other machinery of the heading plant sold and converted by appellant. The court instructed the jury that the sole issue to be determined by them was the market value of the property at the time it was converted by appellant. This was error because, if it be conceded that the execution of the lease, which was not acknowledged and recorded, was proved and admissible as...