Slane v. Curtis
| Decision Date | 07 April 1930 |
| Docket Number | 1592,1591 |
| Citation | 286 P. 372,41 Wyo. 402 |
| Parties | SLANE v. CURTIS [*] |
| Court | Wyoming Supreme Court |
Rehearing Denied May 21, 1930, Reported at: 41 Wyo. 402 at 417.
APPEAL from District Court, Hot Springs County, EDGAR H. FOURT Judge.
Action by W. T. Slane against H. D. Curtis. From the judgment, both plaintiff and defendant appeal. See also 39 P. 1; 269 P. 31; 270 P. 541. Rehearing denied, 288 P. 12.
Modified and affirmed.
For the appellant, H. D. Curtis, there was a brief by Wm. L. Simpson and C. W. Axtell, both of Thermopolis, and oral argument by Mr. Axtell.
The first appeal was dated July 17, 1928, reversing the judgment of the trial court and remanded the cause with instructions to determine the value of the property, illegally removed by respondent Curtis, as indicated in the opinion, and to enter judgment in the amount so found to be due, in favor of Slane. Thereafter the District Court upon hearing, took further evidence and entered its judgment against Curtis for $ 1536.20, to which Curtis excepted, particularly as to the value fixed upon the doors and windows and other woodware removed, which appellant Curtis claims to have been erroneous and unsupported by the evidence; the court also erred in excluding proof offered by Curtis as to the value of the doors and windows, and in receiving the testimony of witness Campbell who was not qualified to testify as to their values. The value placed upon the doors, windows and other property removed is exclusive, all being second hand property, as of February, 1927, and the court erred in making any finding of fact as to doors, windows and other property removed, or in entering any judgment against defendant, for any doors windows or woodware placed in said building, and used for trade fixtures, particularly the partitions removed to the Iris Theatre. This court in its former opinion observed that there was no certainty as to what property was removed and carried to the Whiting Theatre, which was Slane's building. The fixtures were removable at any time, upon the termination of the lease, being conceded to be trade fixtures; the only evidence of value upon separate items aggregates the sum of $ 534.20, while the witness believed the value thereof to be $ 888.80. This was the testimony of witness Campbell. Trade fixtures are removable and those removed from the Whiting Theatre, were trade fixtures upon which no damage could be assessed. This appellant is entitled to all of the property described in plaintiff's brief. The property removed from the Whiting Theatre, was removable at any time upon the termination of the lease, being trade fixtures. But the trial court indicated in its record that the question of trade fixtures would be left to the Supreme Court for decision. The trial court further erred in entering upon a retrial of the issues, respondent being taken by surprise at the close of the original testimony. Respondent and appellant is entitled under the evidence to all of the property removed from the Whiting Theatre to Slane's place, as described in plaintiff's brief. This property was taken to the Slane Theatre and affixed thereto as trade fixtures, removable by the tenant upon termination of his lease. 2 Underhill Landlord and Tenant, Sec. 376; Ballard v. Company, 93 Wash. 655; Slane v. Curtis, 39 Wyo. 1. The trial court erroneously added to the value of the property, the cost of its installation. The trial court erred in not deciding under the mandate of the Supreme Court, the question as to whether the property was trade fixtures, and its failure to do so leaves the matter open for this court to find what part of the judgment should be modified or reduced in favor of this appellant.
For the appellant and respondent, W. T. Slane, there was a brief by C. R. Ingle, of Thermopolis, and oral argument by Mr. Ingle.
This case has been in this court before and the record on appeal includes all the proceedings from the beginning of the case down to the present time. Plaintiff sought to recover for fixtures wrongfully removed from the Slane Theatre. The former decision directed the trial court to find the value of the property illegally removed by defendant Curtis, and to enter judgment for the amount of such value. Pursuant to this direction the trial court found the value of the property wrongfully removed to be $ 1,536.20, instead of $ 3,000.00, as found in his former decision. Appellant Slane complains that the judgment and findings are not sustained by the evidence, and that the court should have made the findings requested by plaintiff. The fixtures removed, consisted of heating and plumbing, doors and woodware, electrical wiring. The trial court neglected to find the value of the dressing room, the undisputed evidence of which was that it was of the value of $ 107.00. The court refused to find the value of the electric wiring, although evidence fixed the value at from $ 280.00 to something over $ 500.00, defendant offered to prove that the installation cost of plumbing and heating was in excess of $ 3,500.00. The trial court did not follow the directions of this court given in the former appeal. The judgment should be reversed with directions to enter judgment for the value of the fixtures removed as shown by the evidence.
Answer brief of C. R. Ingle for respondent Slane.
C. R. Ingle in reply to plaintiff's brief contends that the judgment for $ 858.80 for the doors and woodware removed was wrong. Upon the former appeal it was held that the contract permitting removal of certain fixtures upon termination of the lease, should govern and that as to other removals not referred to, in the lease, general principles of law should govern. The main doors and windows of the building were not trade fixtures, but a part of the building itself. To take doors and windows out of the building under a claim that they are trade fixtures finds no support in the decisions. The fixtures were of a permanent nature required in the operation of a theatre. Curtis, disregarding the rights of plaintiff, removed all plumbing, heating, electric wiring, doors and windows in the face of an injunction, broke his lease and moved out.
Wm. L. Simpson and C. W. Axtell for appellant Curtis.
Defendant Curtis upon the second trial assumed that it would be conducted according to the directions of this court, but instead, witnesses were called and testified on the question of replacement values of property alleged to have been removed. Defendant objected to the admission of this evidence. There was a gross abuse of discretion by the trial court in the reception of evidence as to what were, and what were not removable fixtures. Upon the conclusion of the trial, plaintiff requested special findings, and the court took the case under advisement, but the case was thereafter reopened, and additional evidence was taken, viz: that of the witness Campbell, who testified as to doors, box office windows, hardware, and doors of the dressing room, and fixed values thereon, which was clearly erroneous. In the former hearing, replacement values were excluded, whereas in the second hearing, replacement values were received. The court apparently deducted the values of what it concluded to be trade fixtures from the property illegally removed, such as doors, windows, and other property outside of the heating apparatus, and the electrical fixtures and wiring, and fixed a value thereon, based upon conflicting evidence of plaintiff's witness. The testimony of witness Campbell fairly fixed as trade fixtures, property removed from the Whiting Theatre. It was proven that the items of property removed from the Whiting Theatre, were second hand trade fixtures. As to the electrical fixtures testified to by the witness under that clause of the contract referred to on pages 5 and 6 of the former opinion of this court in the 39th Wyoming, no values were found as to wire. All property removed from the Whiting Theatre and installed in the appellant's (Slane's Theatre) was the property of this respondent and consisted of trade fixtures. It is not the property of Slane. The defendant desires to submit the following authorities in support of his contention that the District Court erred in finding a value of $ 858.80, as the value of the doors, windows and other woodware removed including cost of installation. Slane v. Curtis, 39 Wyo. 10, 11, 12 and 13; Underhill Landlord and Tenant 376, 26 C. J. 695, Sec. 81.
On September 2, 1925, W. T. Slane, hereinafter mentioned as the plaintiff, leased Lot 21 in Block 2 in the town of Thermopolis, Wyoming, upon which a building, containing two stores, was situated, to C. A. Mulock and Mary Mulock for the term of fifteen years. The lease was in the ordinary form and contained the usual provisions that the lessees had received the premises in good order and condition and that at the expiration of the term mentioned in the lease they would yield up the premises to the lessor in as good order and condition as when they were entered upon by the lessees, loss by fire and inevitable accident and ordinary wear and tear excepted, and that they would keep the premises in good repair during the term of the lease at their own expense. At the same time a contract was entered into for the making by the lessees, at their expense, of certain repairs and alterations in the building, with the view to fitting it for a theater. It was agreed that at the expiration of the lease and contract the electric wiring, plumbing, plumbing fixtures, heating apparatus, radiators, and the picture machine booth should become the property of the lessor, but that the lessees should have the right to remove opera chairs, moving picture...
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