Walker v. Schindel

• Decision Date: 11 July 1882
• Citation: 58 Md. 360
• Parties: WILLIAM W. WALKER v. L. MILFORD SCHINDEL.
• Court: Maryland Court of Appeals

58 Md. 360

WILLIAM W. WALKER v. L. MILFORD SCHINDEL.

Court of Appeals of Maryland

July 11, 1882

APPEAL from the Circuit Court for Washington County.

The case is stated in the opinion of the Court.

Exception.--The plaintiff offered a prayer which is contained in the opinion of the Court. The defendant asked the following instructions to the jury:

1. That according to the construction of the articles of agreement of copartnership read in evidence, the plaintiff became obligated to furnish for the firm or copartnership, the capital necessary to furnish the building (where the business was conducted) with all the necessary machinery and appliances essential for that purpose; and if the jury find from the evidence, that the articles sued for in this case were essential for the purpose of distilling, and that the plaintiff did furnish the capital for the purchase of them in pursuance of the said articles of agreement, and in fulfilment of his understanding as mentioned therein, then the said property or articles thereby became the property of the copartnership. And if the jury further find that the plaintiff and his father agreed between themselves, that the said property should be the property of the plaintiff notwithstanding the said agreement, nevertheless the plaintiff is not entitled to maintain this action, if the jury find that there was no change in the possession of the property, and that it remained thereafter in the same plight and condition as before, and that the plaintiff did not charge himself with the same on the books of the firm; and also, that the assets of the partnership have (exclusive of the articles sued for here,) been reduced to money, and the same was insufficient for the payment of partnership debts, and only reached to pay fifty cents in the dollar.

2. If the defendant purchased the building in which the articles sued for in this case were at the time of the purchase, from one Hammerslay, and Hammerslay purchased it for the purpose of converting it into a distillery to carry on there the business of a distillery, and with that view entered into the agreement of copartnership read to the jury, and pursuant to the said agreement the said Hammerslay and the plaintiff entered into the business of distilling, and the articles sued for were accordingly placed therein, and used as the apparatus for distilling; and further find that one of these, the mash tub, was and is yet fastened in the floor of the third story of said building, and that it, together with the three square fermenting tanks, were, and are too large to be removed whole from the building, and that they were built or made on the inside of the building and cannot be taken out without being knocked to pieces, and that they were not built or made so as to be taken apart and carried out of the building, and that these last mentioned articles and the others mentioned in the declaration in this case, are all connected together, one with the other, and so constitute a complete apparatus essential to the business of distilling, and that the said building in which they were placed, was and is still arranged and devoted to the purpose of distilling; and further find, that whilst the building and apparatus were in the same plight as when the said parties were carrying on the business of distilling there, the defendant purchased the building and grounds as appurtenant and adjacent thereto, for the purpose of carrying on the business of distilling, and that the plaintiff knew he was so purchasing it, then the plaintiff cannot recover in this action, notwithstanding the jury may believe from the evidence that the defendant knew before or at the time of his purchase, that the plaintiff claimed the said articles as his property.

3. If the jury find that one Hammerslay purchased the building in which the articles sued for in this case were placed, for the purpose of converting it into a distillery and carrying on that business therein, (as a partner with the plaintiff,) and that afterwards, in pursuance of this design on his part, he entered into articles of copartnership with the plaintiff, in the business of distilling to be conducted in the said building; and that the said building was accordingly adjusted and adapted to that purpose, and the articles sued for in this case, pursuant to the agreement of copartnership aforesaid, were placed in the said building, and the business of distilling was carried on therein by the plaintiff, and the said Hammerslay. And further find that some one, or more of said articles, was, or were fastened to, or in the flooring of the said building, and that certain other of the said articles, to wit: the wooden beer well, the three square tanks, the mash tub, were built up through the floor, and put together on the inside of the said building, and are, or were too large to be taken out without being knocked to pieces, and that they were not put together, or built so as to be capable of being knocked to pieces, but for the purpose of remaining in the building. And further find, that each and all of these articles sued for, are connected together, one with the other, so as to constitute one complete apparatus, essential to the business of distilling, and that they were and are still used for that purpose. And further find, that afterwards, the said copartnership between the plaintiff and defendant was dissolved, but the said articles remained in the said building, placed and connected together as distilling apparatus from the time of the dissolution, up to the time hereinafter mentioned, when the defendant purchased the building. And also further find, that the defendant about the 7th of January, 1879, after the dissolution, purchased the said building for the purpose of conducting and carrying on there, the business of distilling, and that it was known to the plaintiff, and to the said Hammerslay, that the defendant did purchase with that view. And further find, that at the time of the said purchase, the said building, and the said apparatus were in the same plight as when the business of distilling was carried on by the plaintiff and Hammerslay, and that the said articles were essential to the operation and business of distilling, then the plaintiff is not entitled to recover, notwithstanding the fact, that he claimed the said articles to be his, and the defendent knew of his said claim.

The Court (MOTTER, J.,) granted the prayer of the plaintiff and refused those of the defendant; the defendant excepted, and the verdict and judgment being against him he appealed.

The cause was argued before BARTOL, C.J., STONE, GRASON, MILLER, IRVING, and RITCHIE, J., for the appellee, and submitted for the appellant.

A. K. Syester, for the appellant.

H. H. Keedy, for the appellee.

BARTOL C.J., delivered the opinion of the Court.

This is an action of trover brought by the appellee against the appellant, to recover damages for the illegal conversion by the latter of certain trade fixtures in a distillery, which are described in the declaration.

The evidence clearly shows, and it has not been denied by the appellant, that the fixtures in question were purchased by the appellee, and put into the building by him as his property, under a contract with George E. Hammerslay, the owner of the building, with whom he had formed a copartnership for the purpose of carrying on the distillery; by which contract it was expressly stipulated that the fixtures in question were to be and remain the separate and individual property of the appellee. Nor is it denied that these facts were known to Ranney W. Hunter, the mortgagee of Hammerslay, at the time he accepted the mortgage, and also to the appellant when he purchased the mortgaged property, and accepted the deed from Hammerslay of his interest therein. These admissions by the appellant dispense with the necessity of considering several of the appellant's exceptions to the testimony offered by the appellee, for the purpose of proving the facts above enumerated.

The prayer of the appellee granted by the Circuit Court, which has been omitted from the record, has been supplied by agreement, and is as follows;

"The plaintiff prays the Court to instruct the jury, that if they find from the evidence, that the plaintiff and Hammerslay entered into copartnership, for the purpose of distilling whiskey, and that the plaintiff purchased with his own funds the...