Winnike v. Heyman

• Decision Date: 14 December 1918
• Docket Number: No. 32397.,32397.
• Citation: 169 N.W. 631,185 Iowa 114
• Parties: WINNIKE v. HEYMAN.
• Court: Iowa Supreme Court

185 Iowa 114

169 N.W. 631

WINNIKE

v.HEYMAN.

No. 32397.

Supreme Court of Iowa.

Dec. 14, 1918.

Appeal from District Court, Carroll County; M. E. Hutchison, Judge.

Action to recover damages consequent upon the removal of a second floor constructed by a tenant in one end of the demised's building and a stairway thereto. At the close of evidence, the court, on motion, directed a verdict for defendant on which judgment was entered. The plaintiff appeals. Reversed.Brown McCrary, of Carroll, for appellant.

W. C. Saul and W. I. Saul, both of Carroll, for appellee.

LADD, J.

MacLagan owned lot 1 and part of lot 2 in block 21 in Carroll on which stood a brick building. The defendant, as lessee of MacLagan, occupied one room thereof, 19 feet wide and 39 feet long, and basement as a candy store and ice cream parlor from about 1902 until some time in 1916. In 1909, MacLagan conveyed the premises by warranty deed to Guy. It appears that there was a balcony at the back end about 6 or 7 feet wide and 7 feet above the floor with a narrow stairway up to it. This balcony was attached by two iron rods to the joist above and rested on a 2x4 scantling back and the ends, nailed to the walls and two posts in front. According to Heyden, MacLagan told him he could build onto the balcony or take it down, and he built onto it twice prior to the conveyance to Guy and put in an oak stairway after such conveyance. Heyden yielded possession in 1916, and in doing so removed the balcony as extended and also the stairway, and in this action plaintiff, Winnike, who went into possession as lessee of Guy for himself as assignee of Guy, seeks to recover the value of the property removed and the consequent damages to the building. The defendant alleged that the floor and stairway constituted trade fixtures and that he had the right to remove them. But two questions are involved, though appellant's argument has taken a wide range: (1) Whether the extended balcony and stairway were trade fixtures; and (2) whether Guy acquired title to said balcony as extended under his warranty deed from MacLagan.

[1] “Trade fixtures” is a term usually employed to describe property which a tenant has placed on rented real estate to advance the business for which it is leased and which may, as against the lessor, be removed at the end of the tenant's term. Ray v. Young, 160 Iowa, 613, 142 N. W. 393, 46 L. R. A. (N. S.) 947, Ann. Cas. 1915D, 258, where rules on the subject are gathered. That the floor or extended balcony was constructed in connection with the defendant's business, there can be no doubt, and from the evidence the jury might have concluded that defendant had no intention that the additions should become a permanent part of the improvement. He bore the expense, and MacLagan had no connection therewith save in saying to defendant that “he could build onto the balcony or take it down.” There was nothing in its appearance as extended to indicate that it was other than a permanent structure. Brick were removed from the wall and the ends of the joist inserted in the holes left, and the floor rested on these joist. From the first floor an oak stairway led to the floor above. In 1916, defendant notified Guy that he would yield possession, and Guy leased the premises as they then were to plaintiff, who was without information as to who had constructed the second floor, and, though the stairway was installed after he obtained title to the property, he knew nothing concerning this. Shortly thereafter, defendant removed the floor and stairway, leaving some of the joist sticking in the walls, and the holes out of which the ends were taken were not repaired. The brick were replaced and plastered in by plaintiff at considerable expense, and for this recovery was sought.

One Johnson testified:

That he had removed the floor and stairway for defendant, “took it out in pieces, the stairway in one piece, and that there was no substantial injury to the building after the brick should be replaced. That they could have pried the joists out, but sawed them off. That the floor had the appearance of being fastened into the building; and it would not hurt a great deal to tear the floor down to the building. It would probably injure it some. * * * It would not injure the walls of the building after it was repaired. You may mar it, but you can't fix it, even if plastered up; it could not be the same...