Spalding v. Columbia Theatre Company
| Decision Date | 06 April 1915 |
| Citation | 175 S.W. 269,189 Mo.App. 629 |
| Parties | KATHERINE C. SPALDING, Respondent, v. COLUMBIA THEATRE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
Judgment affirmed.
Reynolds & Harlan for appellant.
(1) In an action of replevin, the burden is on the plaintiff under a general denial to establish his title to the property in question, and his right to the immediate and exclusive possession thereof. Morgner v. Biggs, 46 Mo. 65; Phillips v. Schall, 21 Mo.App. 38; Gray v Parker, 38 Mo. 165; Andrews v. Castocan, 30 Mo.App. 29; Steffen v. Long, 165 Mo.App. 254. (2) Whether a chattel has become an immovable fixture consists in the united application of the following tests: (a) Has there been a real or constructive annexation of the article in question to the realty; (b) Was there a fitness or adaptation of such article to the uses and purposes of the realty with which it is connected; (c) Whether or not it was the intention of the party making the annexation that the chattels should become a permanent accession to the freehold this intention being inferable from the nature of the article, the relation and situation of the parties interested, the policy of the law in respect thereto, the mode of annexation, and the purposes or uses for which the annexation is made. And of these three tests, prominence is to be given the intention to make the article a permanent accession to the freehold while the others are generally of value as evidence of this intention. Ottumwa Iron Works v. Muir, 126 Mo.App. 582; Hatton v. Railroad, 253 Mo. 660; Press Brick & Machinery Co. v. Brick & Quarry Co., 151 Mo. 512; Banner Iron Works v. Iron Works, 143 Mo.App. 1; McLain Investment Co. v. Cunningham, 113 Mo.App. 519; Baldwin v. Merrick, 1 Mo.App. 281; Loan v. Gregg, 55 Mo.App. 581; Cooke v. McNeil, 49 Mo.App. 81; Red Diamond Clo. Co. v. Stiedman, 169 Mo.App. 306, Andrews v. Chandler, 27 Ill.App. 103; Chapman v. Life Ins. Co., 4 Ill.App. 26; New Castle Theatre Co. v. Ward (Ind. App. 1914), 104 N.E. 526; Robinson v. Harrison, 237 Pa. 613; Metropolitan Concert Co. v. Sperry, 9 N. Y. St. 342, affirmed in 120 N.Y. 620. (3) And this is the true test even though the chattel has been actually affixed to the realty, provided it may be removed without serious injury to the freehold or to itself. Ambs v. Hill, 10 Mo.App. 108; Goodin v. Elleardsville Hall Assn., 5 Mo.App. 289; McLain Investment Co. v. Cunningham, 113 Mo.App. 519; Loan v. Gregg, 55 Mo.App. 581; Banner Iron Works v. Iron Works, 143 Mo.App. 1; Bircher v. Parker, 40 Mo. 118; Morrison v. Sohn, 90 Mo.App. 76; Kuhlman v. Meier, 7 Mo.App. 260; Powell v. McAshan, 28 Mo. 70; Philadelphia Mortgage Co. v. Miller, 20 Wash. 607, 44 L.R.A. 559; Cooper v. Johnson, 143 Mass. 108; Blancke v. Rogers, 26 N.J.Eq. 563; Metropolitan Concert Co. v. Sperry, 9 N. Y. St. 342; affirmed in 120 N.Y. 620; Andrews v. Chandler, 27 Ill.App. 103; Chapman v. Life Ins. Co., 4 Ill.App. 26; Hanrahan v. O'Reilly, 102 Mass. 201; Ombony v. Jones, 19 N.Y. 234; Hatton v. Railroad, 253 Mo. 660; New Castle Theatre Co. v. Ward, 104 N.E. 526; Forbes v. Alabama Machinery & Supply Co. (Ala. 1912), 58 So. 398; Webber v. Franklin Brewing Co. (App.Div.), 108 N.Y.S. 251; Walker v. Tillis, 66 So. 54. (4) The common-law rule relating to fixtures has been relaxed in its application to landlord and tenant, and the rule between vendor and vendee, and mortgagor and mortgagee does not apply. Tyler v. White, 68 Mo.App. 607; McLain Investment Co. v. Cunningham, 113 Mo.App. 519; Baldwin v. Merrick, 1 Mo.App. 281; Davis v. Dugan, 56 Mo.App. 311; Hardware Co. v. Lead & Zinc Co., 153 Mo.App. 393; Thomas v. Davis, 76 Mo. 72; Bircher v. Parker, 40 Mo. 118; State v. Newkirk, 49 Mo. 84; Sharp v. Insurance Co., 160 Mo.App. 475; Rogers v. Crow, 40 Mo. 91; Kuhlman v. Meier, 7 Mo.App. 260; Powell v. McAshan, 28 Mo. 70; Hanrahan v. O'Reilly, 102 Mass. 201; New Castle Theatre Co. v. Ward, 104 N.E. 526.
Edward A. Feehan for respondent.
(1) Opera chairs, firmly screwed to the floor of a theatre, and arranged and placed to conform with the plan of the auditorium, are a part of the realty, unless it clearly appears that it was the intention of the parties, at the time the chairs were installed, to regard them as chattels. Such chairs are not trade fixtures. New York Life Ins. Co. v. Allison, 107 F. 179; Murray v. Bender, 125 F. 705; Temple Co. v. Insurance Co., 69 N.J. L. 36; Oliver v. Lansing, 59 Neb. 219; Grosz v. Jackson, 6 Daly (N. Y.) 463. (2) Where a tenant, without the knowledge or consent of the landlord, substitutes other fixtures for those which he finds upon the leased premises, and destroys or disposes of the old fixtures so that he cannot replace them, the substituted fixtures become the property of the landlord; and this regardless of whether or not the fixtures in question be technical "fixtures" or mere chattels. Hay v. Tillyer (N.J.), 14 A. 18; Ashby v. Ashby, 59 N.J.Eq. 536; Ex parte Hemenway, 2 Lowell, 496; Whiting v. Brastow, 4 Pick. 310; Pond v. O'Connor, 70 Minn. 266; McLain Inv. Co. v. Cunningham, 113 Mo.App. 519. (3) Where a tenant enters into a new lease of the same premises, without reserving any rights as to fixtures therein, the fixtures become the property of the landlord, unless it clearly appears that they were originally the property of the tenant, that he installed them with the intention of removing them, and that they are "trade fixtures" adapted to the business of the tenant, and not fixtures which are an integral part of the leased premises. Williams v. Lane, 62 Mo.App. 66; Champ Spring Co. v. Roth, 103 Mo.App. 103; St. Louis v. Nelson, 108 Mo.App. 210; Clothing Co. v. Steideman, 169 Mo.App. 306.
This is a suit in replevin for the possession of a certain lot of opera chairs. The petition avers that plaintiff is the owner and entitled to the possession of the property, of the value of $ 1500, and that defendant wrongfully detains the same from her. Judgment is prayed for the recovery thereof, and damages for the detention. The answer is a general denial.
The trial before the court, without the intervention of a jury, resulted in a judgment in plaintiff's favor for the possession of the property, and for one cent damages for the detention thereof; and the case is here upon the defendant's appeal.
On February 7, 1911, plaintiff, being the owner of a lot of ground in the city of St. Louis, with improvements thereon known as the "Havlin Theatre Building," leased the property to the St. Louis Theatre Company, a corporation, for a term of five years beginning on September 15, 1911, and with the privilege on the part of the lessee to extend the term of the lease for an additional period of five years. The lease provided that at the expiration of the tenancy the lessee would deliver up the premises "in like good order" in which they were at the time of the letting, ordinary wear and tear and damages by the elements excepted.
The premises included a theatre which had been operated as such for many years. The lower floor thereof was equipped with opera chairs which had been in use for perhaps ten years. In the summer of 1911 the lessee made certain repairs to the interior of the theatre, and removed the opera chairs above mentioned and installed new chairs in their stead. The lessee stored the old chairs until February, 1912, when it sold them. It does not appear that plaintiff was consulted as to this, or that she had any knowledge thereof. It seems that by April 30, 1912, the lessee had become in default in the payment of rents reserved, and plaintiff caused the lessee to be served with a thirty days' notice of forfeiture of the lease, in accordance with the terms thereof. After the service of this notice, and before the expiration of the thirty days' period, the lessee removed the new opera chairs and caused them to be stored on the premises of the defendant from whose possession they were taken under the writ of replevin issued herein.
Plaintiff's case, of course, proceeds upon the theory that the opera chairs involved in the action, i. e., those installed by the lessee and afterwards removed by it, became a permanent accession to the freehold, when substituted for the old chairs and affixed to the floor of the building, whereby title thereto passed to plaintiff. Defendant, on the other hand, contends that, as between the landlord and the tenant, the chairs thus installed by the latter retained their original character as personalty, the title thereto remaining in the lessee.
The lease is silent as to the right of the lessee to remove fixtures of any character. The matter is therefore not affected by any positive agreement between the landlord and the tenant relative to the right of the latter to remove fixtures installed by it.
The chairs may be termed fixtures, whatever may be the tenant's right to remove them under the circumstances shown in evidence. Though there were about 770 seats on the floor in question, they did not consist of that number of detached chairs, but were installed in sections or rows, varying in length according to the seating arrangement, the seats in each being in some manner connected. It appears that any number of chairs could be put in a section by placing them between certain end castings. They were firmly fastened to the floor by screws, which was necessary, if for no other reason, to keep them from tipping over.
In New York Life Insurance Co. v. Allison, 107 F. 179, it was held that, as between mortgagor and mortgagee, opera chairs, so arranged in an auditorium and affixed to the floor thereof, were presumably intended as permanent attachments...
To continue reading
Request your trial