Western Maryland Dairy, Inc. v. Maryland Wrecking & Equipment Co.

• Decision Date: 01 July 1924
• Docket Number: 51.
• Citation: 126 A. 135,146 Md. 318
• Parties: WESTERN MARYLAND DAIRY, INC., v. MARYLAND WRECKING & EQUIPMENT CO. ET AL.
• Court: Maryland Court of Appeals

126 A. 135

146 Md. 318

WESTERN MARYLAND DAIRY, INC., v. MARYLAND WRECKING & EQUIPMENT CO. ET AL.

No. 51.

Court of Appeals of Maryland

July 1, 1924

Appeal from Baltimore Court of Common Pleas; James M. Ambler, Judge.

"To be officially reported."

Action by the Maryland Wrecking & Equipment Company and another against Western Maryland Dairy, Incorporated, and another. Judgment for plaintiffs, and named defendant appeals. Reversed without new trial.

Argued before PATTISON, URNER, ADKINS, OFFUTT, DIGGES, BOND, and PARKE, JJ.

George W. Lindsay, of Baltimore (Sauerwein, Lindsay & Donoho, of Baltimore, on the brief), for appellant.

Joseph Bernstein, of Baltimore (Rosenbush & Bernstein, of Baltimore on the brief), for appellees.

PARKE J.

The Maryland Wrecking & Equipment Company, a corporation, and Harry Klaff, trading as H. Klaff & Co., recovered against the Western Maryland Dairy, Incorporated, the sum of $2,500 in an action of trover and conversion. The suit was brought by the Maryland Wrecking & Equipment Company, as owner, against the Western Maryland Dairy and the News Publishing Company, joint tort-feasors. During the course of the case Harry Klaff trading as H. Klaff & Co., was made a coplaintiff. At the close of the proof the court instructed the jury that there was no legally sufficient evidence to warrant a recovery against the News Publishing Company, but declined a similar instruction for its codefendant.

The Western Maryland Dairy owned a property in Baltimore, bounded by Hamilton, Courtland, and Center streets and Hargrove alley, which it agreed, on March 14, 1922, by a written contract to sell to the News Publishing Company of Baltimore city. The transaction was to be closed at any time on or before the 31st day of December, 1922; the vendor reserving the right to remove from the property, before the date of the transfer, "all machinery and equipment located therein."

Anything provided for efficient service in the dairy business as conducted on the premises of the appellant that were sold to the News Publishing Company would be included in the term "equipment" as used in the contracts in this case. It therefore would include fixtures. Appeal Tax Court v St. Peter's Academy, 50 Md. 346; Redemptorists v. Howard County, 50 Md. 449, 452; Warren Mfg. Co. v. Baltimore, 119 Md. 200, 205, 86 A. 502; Com. v. Breakwater Co., 214 Mass. 10, 100 N.E. 1034, 1037; Kirwan v. Latour, 1 Har. & J. 289, 2 Am. Dec. 519; Dudley v. Hurst, 67 Md. 44, 8 A. 901, 1 Am. St. Rep. 368.

It follows that the expression, "all machinery and equipment located therein," embraced fixtures.

While fixtures will ordinarily pass from the vendor to the vendee with the title to the land, yet the parties may agree otherwise. In Walker v. Schindel, 58 Md. 360, it is recognized that the common-law rule by which "whatever is affixed, or annexed to the soil or freehold becomes a part of it, and cannot be removed except by him who is entitled to the inheritance," may be modified or changed by agreement of the parties so that fixtures so annexed may, subject to certain qualifications, be treated as personalty, and damages for their conversion may be recovered in trover. While the agreement in the case cited was made before the fixtures were annexed, it would seem that it would have been just as effective if it had been made afterwards. O'Brien v. Mueller, 96 Md. 134, 137, 53 A. 663; Baldwin v. Francis, 118 Md. 177, 181, 84 A. 346; Lewis v. Schlichter Co., 137 Md. 217, 224, 112 A. 282; Northern Central Railway Co. v. Canton Co., 30 Md. 347, 352, 355; Willard v. Higdon, 123 Md. 449, 451, 91 A. 577, Ann. Cas. 1916C, 339; Code, art. 83, § 97.

In this case there was no absolute agreement by the vendor and vendee for a severance of the fixtures, but a contingent one, creating a right which was dependent upon the condition precedent that the physical detachment and removal of the fixtures from the premises must be made before a named day.

If this condition precedent be not fulfilled by the severance and removal of the fixtures and personal property by the day specified, or by a later date as agreed or as enlarged by waiver, the fixtures retain their nature as part of the realty and pass to the vendee. Carlin v. Ritter, 68 Md. 478, 13 A. 370, 16 A. 301, 6 Am. St. Rep. 467; 11 R. C. L. "Fixtures," § 12; Loughran v. Ross, 45 N.Y. 792, 6 Am. Rep. 173. See, also, Mengal Box Co. v. Moore, 114 Tenn. 596, 87 S.W. 415, as reported and annotated in 4 Ann. Cas. 1047.

It is a result of this agreement that the fixtures would not become, as against the vendee, a personal chattel until there was as actual severance and removal. As between the purchaser of the fixtures and the vendor, the fixtures were potential personal property, and their sale should be regarded as one of goods and chattels. Purner v. Piercy, 40 Md. 224, 17 Am. Rep. 591; 11 R. C. L. "Fixtures," § 10; Searle v. Bishop of Springfield, 203 Mass. 493, 89 N.E. 809, 25 L. R. A. (N. S.) 992, 17 Ann. Cas. 340. See 1 Williston on Sales (2d Ed.) § 66, p. 104.

As the exception of the fixtures was an express condition of its purchase, the News Publishing Company was fully bound by all the legal consequences. Walker v. Schindel, 58 Md. 364, 365; Newbold v. Peabody Heights Co., 70 Md. 493, 17 A. 372, 3 L. R. A. 579; Peabody Heights Co. v. Wilson, 82 Md. 186, 32 A. 386, 1077, 36 L. R. A. 393; Thomas v. G. B. S. Brewing Co., 102 Md. 417, 62 A. 633; Engler v. Garrett, 100 Md. 387, 59 A. 648; Northern Central Railway Co. v. Canton Co., 30 Md. 352, 353; Waters v. Wambach, 140 Md. 253, 117 A. 751; Green v. Early, 39 Md. 223; Ohio Pail Co. v. Cook, 222 Pa. 487, 71 A. 1051; Dold Packing Co. v. Ober & Sons Co., 71 Md. 155, 18 A. 34; Crippen v. Morrison, 13 Mich. 33; Coleman v. Lewis, 27 Pa. 291; Hagthorp v. Hook, 1 Gill. & J. 270, 301; 39 Cyc. 1648, 1651.

The transfer to the News Publishing Company was not made within the time named, but the vendor and the vendee extended the period to January 15, 1923, and on January 17, 1923, the deed was delivered and recorded. As has been stated, the appellant had nothing left of its former property save the privilege of removal within a limited period of the machinery and equipment so conditionally excepted. The appellee did not attempt a removal, but on January 9, 1923, a written contract was entered into by the Western Maryland Dairy with the Maryland Wrecking & Equipment Company for the sale to the company of all the equipment and personal property then owned by the seller and then located in designated buildings on the block bounded by Center, Courtland, and Hamilton streets and Hargrove alley, except (a) so much thereof as was a part of the buildings passing with the property, and particularly all lighting, plumbing, and heating equipment, including one marked boiler, elevators and motors for operating the same; electrical switches, switchboards, and connections located in the garage, equipment, supplies, and tools contained in the carpenter shop, and (b) electrical meters or other property owned by any one whatsoever other then the seller.

The sale was made without any guarantees on the part of the seller, and upon the express condition that the sold equipment and personal property should be removed from the premises prior to January 15, 1923, and without damage to the premises.

The Maryland Wrecking & Equipment Company paid the contract price of $1,500 for the property on the day the contract was executed. On the same day the Maryland Wrecking & Equipment Company, by a contract in writing of that date, sold and transferred "all of its right, title, interest, and estate in and to" the contract with the Western Maryland Dairy unto the appellee H. Klaff, trading as H. Klaff & Co., and agreed that the chattels in the contract mentioned should be delivered on or before April 1, 1923.

Although the Maryland Wrecking & Equipment Company had actually moved some of its equipment to the premises four days prior to its contract with the appellant, it was not until the 9th or 10th of January that it took possession of a little office in one of the buildings, where it received its mail; put up a small sign, bearing its name, over the letter box, and from this date its officers and employees had access to the buildings for the purpose of removing the material bought. The Maryland Wrecking & Equipment Company did not remove the property purchased within the period limited by the contract.

The evidence was conflicting, but the proof on the part of the appellees was to the effect that, by reason of fire in one of the boilers, and of ammonia fumes in the basement, where practically all the chattels purchased were located, and of some horses in the stable, the Maryland Wrecking & Equipment Company could not begin to remove the chattels purchased before February 1st; and then were not able to work in the boiler room, and that the Western Maryland Dairy was responsible for these conditions.

On February 1st a foreman with six men, all employees of the Maryland Wrecking & Equipment Company, began to remove the cooling tower, which, with other purchased property, was shipped to H. Klaff & Co.

The work of taking down and carrying away the material continued without interruption until about February 10th, when the George A. Fuller Company, acting for the News Publishing Company, dug holes for soil soundings in front of the boilers, making it impossible to remove them, and the workmen of the Maryland Wrecking & Equipment Company were put to work in a different part of the basement. On February 16th the News Publishing Company sent word to the foreman that all work must stop, on the ground that the News Publishing Company since January 15th was the owner of all the property the Maryland...