The Fred W. Wolf Co. v. Hermann Savings Bank
| Decision Date | 17 February 1913 |
| Citation | 153 S.W. 1094,168 Mo.App. 549 |
| Parties | THE FRED W. WOLF COMPANY, Appellant, v. HERMANN SAVINGS BANK et al, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Gasconade Circuit Court.--Hon. R. A. Breuer, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Scott Bancroft & Stephens, and Robt. Walker for appellant.
J. W Booth and August Meyer for respondents.
This is an action in equity brought by the vendor of personal property to enforce a lien for the unpaid portion of the purchase price. The defendants are the Hermann Brewing Company, the vendee of the property, and the Hermann Savings Bank. The real contest is between plaintiff and the bank and the principal point in issue is whether or not plaintiff is entitled to a lien as against the bank which claims to be the owner of the property. This issue was resolved by the circuit court in favor of the bank and the cause is here on the appeal of plaintiff.
The Kropp Brewing Company, a corporation, owned and operated a brewery in Hermann and became indebted to defendant bank in the sum of $ 12,000. It secured the payment of the indebtedness by a deed of trust on the land and improvements constituting the brewery plant and the deed of trust was duly recorded. Afterward the corporation changed its name to the Hermann Brewing Company and continued the business of operating the brewery. A part of the equipment of the brewery was the refrigerating machinery and, concluding that the successful prosecution of the business required the installation of new machinery in place of the old, the brewing company, without notice to the bank which still held the unsatisfied deed of trust, entered into a contract in writing with plaintiff, a manufacturer of such machinery, to install a new refrigerating plant in the brewery for $ 3580. The contract required plaintiff to furnish on board cars at Hermann "one refrigerating plant of twenty tons ice melting capacity daily consisting of the following machinery and material, all as hereinafter specified in detail." Then follows an enumeration and specification of the different parts of the machinery and appurtenances which in the aggregate constituted a complete refrigerating apparatus. The contract specified that "all foundations, masonry and carpenter work for compressors, engines, pumps, tanks, condensors, scaffolding, etc., and all holes for pipes to pass through walls or floors are to be made by the purchaser. "
As we interpret the contract and understand the evidence the duty was imposed on the brewing company of preparing the place for the installation of the apparatus in a manner that would enable plaintiff to make the necessary emplacements and attachments without disturbing the soil or the buildings. In the work of preparation the brewing company removed the old machinery and put the foundations for the engine, boiler, etc., in such condition that they could be and were fastened to their foundations by merely screwing nuts on imbedded bolts and the apparatus was connected with the remainder of the brewing plant by screwing pipe ends together. In short the installation was so made that the apparatus could be detached by unscrewing some nuts and pipes and removed from the premises without changing or disturbing the condition they were in at the installation of the new apparatus.
The contract provided that "all property rights in this plant shall remain in us (the vendor) until after all money payable hereunder shall have been paid to us in cash." The contract was duly executed and acknowledged by the brewing company and was filed for record in the office of the recorder of deeds. Afterwards the machinery was delivered by plaintiff and placed in the brewery. The brewing company made payments on the purchase price reducing the indebtedness to about $ 600, and then made an assignment for the benefit of creditors. Later the brewery was sold under the deed of trust held by the bank and the bank became the purchaser at that sale.
The assets of the brewing company have been distributed among its creditors and plaintiff received $ 106.06 from the assignee on its demand. The present suit is to enforce the remainder of the debt as a lien on the refrigerating plant. The bank claiming that the property when installed in the brewery became a part of the realty covered by the deed of trust denies the right of plaintiff to such lien.
We do not understand plaintiff as claiming a right to a lien under the mechanic's lien statutes but as founding the right on the terms and provisions of a conditional sales contract, i. e., a contract in which the vendor of personal property reserves title in himself until the payment in full of the purchase price. The mutual intent of plaintiff and the brewing company to enter into a contract for a conditional sale not only is clearly expressed in the contract of sale but also is manifested by a careful observance of all the requirements of the statutes relating to such contracts. The contract was acknowledged and recorded as provided in cases of mortgages of personal property for the purpose of giving notice to subsequent purchasers and creditors of the vendee. So far as the mutual intention of the contracting parties may be allowed to control the interpretation of the contract and the ascertainment and enforcement of the respective rights and duties of the parties thereunder, the contract should be regarded as one that, between the parties, preserved the character of the property as personalty and reserved the title in the vendor as long as any part of the purchase price should remain unpaid.
And in such cases the intention of the parties to the contract will be given controlling effect unless the property be of such nature that necessarily it becomes incorporated into the realty by the act and manner of annexation. "Thus if, in the course of constructing a house, brick should be placed in the walls, and joists and beams in their proper places, the brickmaker and sawyer would not be permitted to despoil the house by asserting an agreement with the owner that the brick and beams were to retain their character as personalty, notwithstanding their annexation." [Patton v. Phoenix Brick Co., 150 S.W. 1116, 167 Mo.App. 8.]
But we said further in the case just cited: ...
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