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

Parke, J., delivered the opinion of the Court. The Maryland Wrecking and Equipment Company, a corporation, and Harry Klaff, trading as H. Klaff and Conor pany, recovered against the Western Maryland D’airy, Incor ³²¹ porated, the sum of twenty-five hundred dollars in an action of trover and conversion. The suit w'as brought by the Maryland Wrecking and 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 and Company, was made a co-plaintiff. At the close of the proof the court instructed the jury that there was no legally sufficient evidence to warrant a recovery against the New's Publishing Company, but declined a similar instruction for its co-defendant. The Western Maryland Dairy owned a property in Baltimore bounded by Hamilton, Courtland and Center Streets and Hargrove Alley, which it agreed, on March 14th, 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, sendee 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 ; Com. v. Breakwater Co., 214 Mass. 10 , 100 N. E. Rep. 1034, 1037; Kirwan v. Latour, 1 H. & J. 289 ; Dudley v. Hurst, 67 Md. 44 . Tt follows, that the expression “all machinery and equipment located therein,” embraced fixtures.

While fixtures will ordinarily pasis from the vendor to the vendee with the title to. the land, yet the parties may agree otherwise. In Walker v. Schindell, 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 ³²² 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 ; Baldwin v. Francis, 118 Md. 117, 181 ; Lewis v. Schlichter Co., 137 Md. 224 ; Northern Central Railway Co. v. Canton Co., 30 Md. 347, 352, 355 ; Willard v. Higdon, 123 Md. 449, 451 ; Code, art. 83, sec. 97.

In this ease there w,as 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 pf 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 ; 11 R. C. L. “Fixtures” sec. 12; Loughran v. Ross, 45 N. Y. 792 ; See also Mengal Box Co., v. Moore, 114 Tenn. 596 , as reported and annotated in 4 A. & E. Ann. Cas. 1047. It is a result of this agreement that the fixtures would not become, as against the vendee, personal chattels until there Was an 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 ; 11 R. C. L. “Fixtures,” sec. 10; Searle v. Bishop of Springfield, 203 Mass. 493 ; See 1 Williston on Sales, (2nd ed.) see. 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; Newbody v. Peabody Heights Co., 70 Md. ³²³ 493; Peabody Heights Co. v. Wilson, 82 Md. 186 ; Thomas v. G. B. S. Brewing Co., 102 Md. 417 ; Engler v. Garrett, 100 Md. 387 ; Northern Central Railway Co. v. Canton Co., 30 Md. 352, 353 ; Waters v. Wambach, 140 Md. 252 ; Green v. Early, 39 Md. 223 ; Ohio Pail Co. v. Cook, 222 Pa.

St. 487; Dold Packing Co. v. Ober & Sons Co., 71 Md. 155 ; Crippen v. Morrison, 13 Mich. 23 ; Coleman v. Lewis, 27 Pa. 291 ; Hagthorp v. Hook, 1 G. & 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 15th, 1923, and on January 17th, 1923, the deed was delivered and recorded. As has been stated, the appellant had nothing left of its former prop^-erty save the privilege of removal within a limited period of the machinery and equipment so conditionally exeeepted. The appellee did not attempt a removal, but on January 9th, 1923, a written contract was entered into by the Western Maryland Dairy with the Maryland Wrecking and 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 for1 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 than the seller.

The sale was made without any guarantees on the part of the seller and ixpon the express condition that the sold equipment and personal property should be removed from the premises prior to' January 15th, 1923, ,and without damage to the premises. The Maryland Wrecking and Equipment Company paid the contract price of fifteen hundred dollars for the property ³²⁴ on the day the contract was executed. On the same day, the Maryland .Wrecking and 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 and Company, and agreed that the chattels in the contract mentioned should be delivered on or before April 1st, 1923. Although the Maryland Wrecking and 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 officer's and employees had access to the buildings for the purpose of removing the material bought.

The Maryland Wrecking and 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 and 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 and Equipment Company, began to remove the cooling tower which, with other' purchased property, was shipped to H. Klaff axrd. Company.

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 ³²⁵ workmen of the Maryland Wrecking and 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 Wrecking and Equipment Company was then engaged in removing. On its demand, the last- named company received a letter, under date of February 17th, from the News Publishing Company, stating that it had purchased the property and had obtained possession of it on January 17th, 1923, and requesting that an account be rendered of everything which had been taken away subsequent to January 17th; that nothing more be removed, and that the keys to: the property be returned by noon, February 17th. The letter was received on February 17th, and the president of the; Maryland Wrecking and Equipment Company took it to the vice president of the: Western Maryland Dairy and informed him, of the work having1 been stopped, and was told that the matter would be1 adjusted in a few days.

However, in compliance with the written demand of the News Publishing Company, the six keys for the: buildings were delivered to it by the Maryland Wrecking and Equipment Company on February l7tb. Five days after this delivery of the keys, the Maryland Wrecking and Equipment Company received a letter, written at its request by the vice president of the Western Maryland Dairy, explaining that the equipment had been sold by the Western Maryland Dairy