Tolman v. Carleton

• Citation: 85 A. 390,110 Me. 57
• Parties: TOLMAN v. CARLETON.
• Decision Date: 20 December 1912
• Court: Supreme Judicial Court of Maine (US)

85 A. 390

110 Me. 57

TOLMAN

v. CARLETON.

Supreme Judicial Court of Maine.

Dec. 20, 1912.

Report from Supreme Judicial Court, Knox County, at Law.

Trover by A. J. Tolman against Guy Carleton on report. Action to stand for trial.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, KING, and HALEY, JJ.

Reuel Robinson and M. T. Crawford, both of Camden, for plaintiff.

J. H. Montgomery and Oscar H. Emery, both of Camden, for defendant.

SAVAGE, J. Trover for the conversion of personal property attached by the plaintiff as sheriff. The case comes up on report, with the stipulation that, if the action is maintainable upon the evidence, the action is to stand for trial; otherwise, a nonsuit is to be entered.

The evidence warrants a finding of the following facts: On a writ against the Eastern Coupling Company the plaintiff attached three lathes, a drill press, and a hand milling machine, all of which were then in the shop of the Eastern Coupling Company at Camden. Instead of removing these machines, or otherwise retaining physical possession of them, he filed within the town clerk's office within five days an attested copy of his return. He claimed the right to do so under R. S. ch. 83, § 27, which provides that "when any personal property is attached which by reason of its bulk or other special cause cannot be immediately removed, the officer may within five days thereafter, file in the office of the clerk of the town an attested copy of so much of his return on the writ as relates to the attachment, * * * and said attachment is as effectual and valid, as if the property had remained in his possession and custody."

One of the machines weighed 1,200 pounds, two others 800 pounds each, one 400 pounds, and one 100 pounds. They were all belted to the main shaft. The three heavier ones were not fastened to the floor. The other two were bolted to the floor to keep them "steady." There were two entrances to the shop, through one of which the machines could have been removed only with great difficulty, perhaps not at all. Through the other they could have been removed, and were in fact removed later; the heaviest one being taken apart. The plaintiff did not know of the existence of the latter entrance.

The defendant was the manager of the Eastern Coupling Company. He was not present at the time the attachment was made. There is no evidence that he knew of the attachment, unless knowledge may be inferred from the circumstances. Afterwards, and before judgment in the action against the Coupling Company, the defendant caused the machines to be removed to his own shop in Rockport, and to be used there by his own employes. After judgment and Issue of execution, the plaintiff demanded the machines of the defendant, and gave him a copy of the original return. The result of the demand is shown by the following excerpt from the plaintiff's own testimony: "Q. And as a result of that demand did you get the machinery? A. I did not. Q. Whether or not he would give it to you? A. He did not." This is all the evidence there is on that point. The demand was made at the defendant's "home" in Rockport. The machines were then in his "shop, back of his residence."

The defense is threefold: First, that the machines were a part of the realty, and not attachable as personal property; secondly, if the machines were personal property, that the plaintiff did not retain possession of them, and so lost the attachment; and, lastly, that the evidence does not show any conversion by the defendant.

1. We think the first point clearly is not tenable. None of the cases cited by the defendant apply to the facts of this case. They are all cases of annexations made by the owner of the fee, and the controversies were between vendor and vendee, or attaching creditor and the owner of the fee attached, or on partition proceedings. It is well settled that an article may constitute a part of the realty, as between vendor and vendee, or owner of the realty and attaching creditor mortgagor, and mortgagee, which would not under similar conditions and circumstances be so treated as between landlord and tenant. Parsons v. Copeland, 38 Me. 537: Young v. Hatch, 99 Me. 465, 59 Atl. 950, 2 Ann. Cas. 374; Young v. Chandler, 102 Me. 251, 66 Atl. 539. It was conceded at the argument of this case that the Eastern Coupling Company was not the owner of the building in which the machines were, but was merely a tenant. So the rule to be applied in this case is that of landlord and tenant. That rule was very clearly stated in the recent case of Hayford v. Wentworth, 97 Me. 347, 54 Atl. 940. As between landlord and tenant, a chattel does not merge into the realty unless there is physical annexation, at least by juxtaposition, and an adaptability for use with the...