United States Const. Co. v. Hamilton Nat. Bank of Ft. Wayne

• Citation: 73 Ind.App. 149,126 N.E. 866
• Decision Date: 06 April 1920
• Docket Number: No. 10305.,10305.
• Parties: UNITED STATES CONST. CO. v. HAMILTON NAT. BANK OF FT. WAYNE et al.
• Court: Court of Appeals of Indiana

73 Ind.App. 149

126 N.E. 866

UNITED STATES CONST. CO.

v.HAMILTON NAT. BANK OF FT. WAYNE et al.

No. 10305.

Appellate Court of Indiana, Division No. 2.

April 6, 1920.

Appeal from Circuit Court, Allen County; J. W. Eggerman, Judge.

Action by the United States Construction Company against the Hamilton National Bank of Ft. Wayne, Ind., and others. From judgment for defendants, plaintiff appeals. Affirmed.

T. E. Ellison, of Ft. Wayne, and Cratty Bros. & Flatau, of Chicago, Ill., for appellant.

Barrett, Morris & Hoffman and Vesey & Vesey, all of Ft. Wayne, for appellees.

NICHOLS, C. J.

The complaint in this action was in two paragraphs, the first averring wrongful possession and conversion of a fire extinguishing apparatus and sprinkling system located on certain real estate in the city of Ft. Wayne, Ind., to appellant's damage in the sum of $12,000, with a prayer for recovery of that amount, and the second paragraph alleging substantially the same facts with a prayer for recovery of possession, or of $12,000 damages. Appellees' answer was in three paragraphs the first being a general denial, the second pleading an estoppel to the effect that by appellant's act the sprinkler system was so attached to and built into the building on said real estate as to become a part thereof, and that appellees had no knowledge of appellant's claim at the time they accepted a mortgage interest in said real estate, and the third alleging appellant to be a foreign corporation which had not complied with the laws of Indiana relative to doing business in the state, and that therefore it could not maintain its action. Appellant's demurrer was overruled to the second and third paragraphs of answer. There was a trial, and judgment for appellees. After motion for a new trial, which was overruled, this appeal.

The facts that must control the decision of this case, both as to the ruling on the demurrers to the answers and as to the motion for a new trial, briefly stated, are that:

The Kerr Murray Manufacturing Company were the owners and in possession of certain real estate, with the buildings thereon, in the city of Ft. Wayne, Ind., on September 7, 1911, and for many years prior thereto, and continuedto own the same until May 27, 1912, when by due course of law a receiver was appointed for it and its property in the Allen circuit court. Appellant is a foreign corporation for profit, organized for the purpose and with the power of selling, constructing, erecting, and leasing sprinkler systems. It never complied with the provisions of the act of March 9, 1907 (Burns' R. S. 1914, § 4085 et seq.), in relation to foreign corporations. On December 26, 1908, appellant entered into a written agreement with said manufacturing company to equip its factory buildings with the General Fire Extinguisher Company's system of automatic sprinklers, furnishing all labor and material therefor, and to keep the sprinkler equipment in good order during the term of the agreement, for which said manufacturing company was to pay $16,411 in four annual payments. Such agreement is called a lease, but it expressly provides that upon full payment of said annual installments the sprinkler should become the property of the manufacturing company, constituting a part of its plant, and that the instrument should then be released of record. The sprinkler system was to remain the property of appellant, and upon failure of said company to pay appellant might take out and remove said equipment, and it might also collect the annual installments the same as any other mature obligation. In case the company should cease to operate the premises, or should become insolvent, or the premises should be destroyed otherwise than by fire, the company should remain liable the same as if the event had not occurred. No provision was made for the return of any payments made. $9,900 was paid on the contract, none of which was ever repaid or tendered back. Specifications described the various kinds of work and material, including a 40,000-gallon steel gravity tank upon a 75-foot tower, and also including the excavating, filling back trenches, carpentry, masonry, and other work to be done at the site of the factory buildings. This instrument was never recorded. On the same day the contract was sublet to the General Fire Extinguisher Company, except the coal, coke, and sandsheds, the earth, carpenter and masonry work, including all foundations, supports, staging, and inclosures, which was done by appellant. By the specifications the owner was to furnish the 40,000-gallon tank and 75-foot tower, and box tank riser valves and hydrants, and on December 5, 1908, appellant contracted with the manufacturing company to erect the tank and tower, including foundation and supports, box the tank riser, excavate and back-fill the trenches, and to do all necessary carpenter work, for $2,500, to be paid by appellant. The material to be used by appellant was shipped from Ohio, in several carload lots, and consisted of several thousand separate and distinct parts which were fabricated and constructed into a sprinkler system in Ft. Wayne, and for the work of which six to eight men were engaged for from 2 1/2 to 3 months. The large pipes were laid underground from 4 to 5 feet beneath the surface, and under the foundations of the buildings, and under the concrete floors, attached to the 6-inch tank riser, and to the mains of the city works. The small distributing pipes were firmly attached to the walls and rafters by bolts, screws, and metal hangers. The large controlling valves were firmly set upon heavy concrete foundations built for them and firmly attached thereto, and were inclosed in separate rooms made therefor. The tank and the tower were built by the manufacturing company from its own material then on hand at its own plant, as was also the boxing and the tank riser. The inclosing of the large valves by wooden partitions and the excavating and filling of the trenches was done by its employés. The tower was supported by a base 8 or 10 feet in the ground, which, with a well 8 feet square and 6 feet deep, with concrete walls and foundation, for the large controlling valve, was constructed by the manufacturing company. The sprinkler system was more firmly attached to the soil than the buildings themselves, was adapted to the use of the buildings, added value thereto, and appeared to all intents and purposes to be a permanent fixture and a part of the real estate. Appellant had a short time before constructed another sprinkler system in the city of Ft. Wayne. September 7, 1911, the manufacturing company executed a mortgage on said real estate and buildings to the Tri-State Loan & Trust Company to secure an issue of 300 bonds of $1,000 each, and being then indebted to each of appellee banks in excess of $40,000, then due, each bank then extended the time of payment one year, and increased their respective loans to $60,000, including the existing indebtedness, in consideration of the pledge to each of said banks of 65 of said bonds so secured by mortgage as aforesaid. The mortgage was duly recorded. Appellee banks extended the time of such payments, and increased the loans without any knowledge of any claim or title, ownership or lien of the appellant in or to said sprinkler system, or any part thereof. This last statement is disputed, but the court by its general finding has so found, and we do not weigh the evidence. The receiver so appointed as aforesaid filed his petition to sell all of the property of the manufacturing company, alleging its insolvency and a necessity for such sale, to which petition said company and appellee banks were made parties, and the banks set up their claims against the company and their security, asking that the...