Shellenberger v. Hill
| Decision Date | 01 December 1919 |
| Docket Number | No. 13319.,13319. |
| Parties | SHELLENBERGER v. HILL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Holt County; Alonzo D. Burnes, Judge.
"Not to be officially published."
Replevin by E. D. Shellenberger against William R. Hill. From a judgment for plaintiff, defendant appeals. Reversed, and remanded.
Wm. E. Bissett, of Mound City, and Randolph & Randolph, of St. Joseph, for appellant.
A. M. Tibbels, of Mound City, for respondent.
This action is in replevin for a residence furnace heater. The judgment in the trial court was for the plaintiff.
One Melvin owned a residence, and after it was built employed plaintiff to furnish and install the furnace. It was set in cement in the basement floor. The contract of sale was that if it did not prove satisfactory to Melvin there was no sale, Melvin need not pay for it, and plaintiff would take it out. It proved unsatisfactory, plaintiff was notified, and he was to take it out, but delayed in doing so. At about this time Melvin sold the house by warranty deed to defendant, informing the latter of all these matters concerning the furnace. During the negotiation for the sale of the house to defendant, plaintiff met with him and told him of his contract with Melvin, and that the furnace belonged to him (plaintiff), and that he would "take it out," when defendant asked him not to do so, that he would take it. It was shown by other witnesses that defendant thoroughly understood that the furnace was plaintiff's and that he would "settle" with plaintiff for it. After defendant obtained his deed from Melvin, which contained no reservation of the furnace, he refused to pay for it or to surrender it to plaintiff, and this action followed.
The defense is altogether along technical lines, but nevertheless we are compelled to reverse the judgment. The petition does not support the case made by the evidence; in other words, the proof took a wider range than is embraced within the allegation of the pleadings. A mere bailment is alleged in the petition, whereas the proof was of a conditional sale, or "a sale and return." It is alleged in the petition that the furnace in a dwelling house belonging to one Melvin, where it had been temporarily placed and installed by plaintiff under an agreement with Melvin, "that the title and ownership of said heating plant should remain in plaintiff, and that he could remove the same therefrom at some future date according to his convenience"; that afterwards defendant purchased the residence from Melvin after being notified that the furnace "was the property of plaintiff"; and that defendant "well knew the plant was the property of plaintiff and not a part of the real estate...
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