Thomas Cox & Sons Machinery Co. v. Blue Trap Rock Co.

• Decision Date: 28 May 1923
• Docket Number: 8
• Citation: 251 S.W. 699,159 Ark. 209
• Parties: THOMAS COX & SONS MACHINERY COMPANY v. BLUE TRAP ROCK COMPANY
• Court: Arkansas Supreme Court

251 S.W. 699

159 Ark. 209

THOMAS COX & SONS MACHINERY COMPANY v. BLUE TRAP ROCK COMPANY

No. 8

Supreme Court of Arkansas

May 28, 1923

Appeal from Pulaski Circuit Court, Second Division; W. B. Brooks Judge; reversed.

Judgment reversed and cause remanded.

Coleman Robinson & House, for appellant.

The court erred in declaring as a matter of law that the articles of machinery sued for were fixtures and in directing a verdict for appellees. 124 Ark. 341; 26 C. J. 689, § 60; 7 A. L. R. 1573. The judgment should be reversed, and judgment entered here for appellant for the property or its value.

No brief for appellees.

OPINION

WOOD, J.

This is an action in replevin by Thos. Cox & Sons Machinery Co. (hereafter called the appellant) against G. R. Fulton to replevy certain machinery sold by the appellant to Fulton. The appellant alleged that it owned the machinery, which it described in its complaint, and was entitled to possession thereof; that Fulton wrongfully detained the property from the appellant. It prayed judgment for the return of the property or its value in the sum of $ 529, and for wrongful detention thereof in the sum of $ 453. After service of the writ it was discovered that the property was in the possession of the Blue Trap Rock Company (hereafter called company). Appellant then amended its complaint, making the company a party defendant. The company executed a bond for the detention of the property, and answered denying that it was in the possession of the property without right, and denying that it unlawfully detained same. It further alleged that on April 1, 1919, by written agreement, it leased to Fulton its rock quarry plant; that Fulton agreed to operate the plant at his own expense and make such necessary repairs as might be needed, and that it was provided that he should not bind the lessor on any obligation whatever; that the appellant had notice of the conditions of the lease; that in September, 1919, Fulton purchased the machinery and supplies for making the repairs from the appellant, and the company notified the appellant of the conditions under which Fulton was operating the plant; that the company indorsed certain notes of Fulton to the appellant, in which the appellant retained title to certain machinery that had been installed in the plant of the company, and, at the time of indorsing these notes, warned the appellant that Fulton was obligated to make the repairs to the plant and not authorized to bind the company. The company further alleged that the lease of its plant to Fulton had expired and been surrendered to the lessor several months before the appellant instituted this action. The company also alleged that the property in controversy had been permanently attached to the realty.

The secretary and treasurer of the appellant testified that he sold the property in controversy to Fulton. He demanded $ 1,000 in cash of Fulton, and required also that he have the notes for the balance of the purchase money indorsed by the company. Witness talked the matter over with Ledwidge of the company, and the company agreed to indorse the notes, and did indorse for the first part of the machinery ordered. When the balance of the order arrived, appellant took two notes of $ 210 each. The notes recited that they were given for certain machinery, which is described therein. The notes contained a recital that the sale was on the express condition that the title and right of possession did not pass from the appellant until the balance of the purchase money was paid in full. The property was sold and delivered to Fulton upon an understanding with him and Ledwidge that the company should indorse the notes. The notes for $ 210 each are still due. The machinery which was purchased by Fulton consisted of pulleys, bearings for a shaft, and a conveyor belt running over two pulleys. The machinery sold Fulton could be taken out without damaging the machinery that was there before it was put in. The present value of the machinery is, as second-hand machinery, about $ 500. The fair estimate of the damage to the machinery since it had been put into the plant was $ 453. In September, 1919, the appellant refused to deliver the other machinery that had been ordered until the company indorsed the notes. All the machinery was bought about the same time, but at the time it was purchased it was impossible to have all of the articles delivered at once. That accounts for the fact that the two notes sued on were taken after the other notes. The first notes which were taken when the machinery was purchased (and which are indorsed by the company) were paid. The notes in suit dated Jan. 1, 1920, were presented to the company for its indorsement immediately thereafter. Witness took the notes to the company for indorsement, which the company refused.

Fulton testified that he executed the notes in controversy, got the machinery described therein, and installed it at the plant of the company. He had not paid the notes. The machinery purchased is a belt conveyor to handle rock. It is absolutely separate from the rest of the plant, and would work if the rest of the plant were gone. It could be taken out and not...