Weeks-Betts Hardware Co. v. Roosevelt Lead & Zinc Co.

• Decision Date: 06 February 1911
• Citation: 134 S.W. 35,153 Mo. App. 387
• Parties: WEEKS-BETTS HARDWARE CO. v. ROOSEVELT LEAD & ZINC CO.
• Court: Missouri Court of Appeals

134 S.W. 35

153 Mo. A. 387

WEEKS-BETTS HARDWARE CO. v. ROOSEVELT LEAD & ZINC CO.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. FIXTURES (§ 7)—ANNEXATION TO REALTY —"TRADE FIXTURES."

A dummy elevator and sludge table which could be removed from a mining plant without injury to the real estate were trade fixtures.

2. FIXTURES (§ 15)—LANDLORD AND TENANT —MINING PLANT.

A holder of a mining lease at the expiration of his term has the right to remove a mining plant and machinery erected by him to mine, clean, and prepare ore for market, and the plant and machinery are personal property.

3. CONTRACTS (§ 169)—CONSTRUCTION—GENERAL RULES.

Contracts must be construed with reference to the surrounding circumstances and the condition of the parties.

4. FIXTURES (§ 27)—LANDLORD AND TENANT —COVENANT IN LEASE.

Covenants restricting a tenant's ordinary right to remove trade fixtures are always strictly construed.

5. FIXTURES (§ 27)—LANDLORD AND TENANT —MINING MACHINERY.

A provision in a lease of a mining plant and machinery that the lessee agrees to keep the plant in good repair, and to make all improvements, repairs, and replacements necessary to keep it in good running order and repair, and that such improvements, repairs, and replacements shall become property of the lessor, does not apply to a dummy elevator and sludge table added to the plant by the lessee, which were not necessary to keep the plant in good repair, and which could be removed without injury to the realty.

6. FIXTURES (§ 33)—LANDLORD AND TENANT —MINING PLANT—REMOVAL AT EXPIRATION OF TERM.

Where the chattel mortgagee of a dummy elevator and sludge table in a mining plant which had been installed by the lessee made demand therefor on the lessor at the expiration of the lease, and the lessor refused, claiming to be the owner thereof under a contract with the lessee, the lessor could not urge that the mortgagee forfeited its right to the property by not removing it within a reasonable time.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by the Weeks-Betts Hardware Company against the Roosevelt Lead & Zinc Company. From a judgment for plaintiff, defendant Roosevelt Lead & Zinc Company appeals. Affirmed.

W. R. Robertson, for appellant. Horace Merritt, for respondent.

GRAY, J.

This action was instituted in the circuit court of Jasper county October 30, 1909, by the plaintiff to recover the value of certain mining machinery. At the time the suit was instituted, the appellant herein, the Roosevelt Lead & Zinc Company, a corporation, was not made a party defendant. An amended petition was filed in which the following allegation relating to the appellant is found: "Plaintiff states that the Roosevelt Lead & Zinc Company is now in possession of said property, and holding same, and is claiming to hold some interest in said property and objecting to the plaintiff taking possession of same, and this amended petition is filed for the purpose of bringing said Roosevelt Lead & Zinc Company into court as a defendant that it may set up its claim if any it has." The appellant appeared in obedience to summons, and filed its answer consisting of a general denial. The cause was tried without a jury, resulting in a judgment in favor of plaintiff, and the appellant appealed.

The plaintiff's petition alleged that it was the owner and entitled to the possession of one sludge table, about 3,600 feet of 2-inch gas pipe, one dummy tailing elevator, including belts, cups, and appliances, located on the McKinley lease on the Connor land near Prosperity, Mo.; that the plaintiff was entitled to the possession of said property by virtue of a chattel mortgage executed to it by the defendant John W. McClellan & Co., on the 20th day of November, 1908, and duly recorded in the office of the recorder of deeds of Jasper county, Mo., and which mortgage was executed for the purpose of securing the payment to plaintiff of two promissory notes amounting to $509.19, that the notes were past due and unpaid, and plaintiff had demanded possession of the property from the defendants, and possession had been refused, and further praying for damages for the unlawful detention and conversion of the property.

The testimony tended to prove that the appellant was the owner of a mining plant and mining lease on a tract of land in Jasper county, known as the Connor land; that the defendant McClellan & Co. had a contract or lease with the appellant for one year, with an option to purchase the mill or lease within the one year; that previous to the time of the execution of that contract other parties had been in possession of the mill, and operating it under similar contracts. There was no sludge table or dummy elevator at the plant when the contract between the appellant and McClellan was entered into. At one time a sludge table had been used in connection with the plant, but the same had been moved away, and nothing but the foundation remained. The relation that the sludge table bore to the mining plant was shown by the testimony of the plaintiff's witness, Mr. Weeks, as follows: "Q. Mr. Weeks, tell the court whether or not the removal and taking away of a sludge table from the mill when it was there in a position this was in would interfere with the operation of the main mill? A. No, sir; it is not a part. Those additions are of very recent date. The mill run for many years without any sludge apparatus. Q. Now, in taking it away, would there still be a complete concentrating plant? A. Certainly. Q. The attachment to the mill was merely the connecting of the power to run such table? A. Yes. Q. That is all the attachment there was to the mill? A. Yes. Throw the belt off and cut out that part. Q. And the cable to this dummy elevator was merely a different way of communicating power, one by belt and one by cable? A. Connected by a cable to a different place. Q. It was not tied to the cable or a cable belt? A. Yes; a transmission cable. Q. The dummy elevator might be taken away without interfering with the operation of the mill? A. It run many years without one. Q. How is this sludge table fastened so far as to ground or foundation? A. It has a separate foundation of its own. Q. These sludge tables, just tell the court what is necessary in the moving— taking them up and moving? A. Very easy to move. Of course, they are not a very large concern, put them on the wagons, just simply a table, about the same pattern. While they are a great many different makes, they are practically the same." And on cross-examination: "Q. Mr. Weeks, the sludge table is set on a cement foundation, is it not? A. I think it is in that case. Q. The...