Smyth v. . Sturges

Danboeth, J. It cannot be doubted that the articles in question formed part of the freehold, and in the absence of anything to indicate a contrary intention were as between vendor and purchaser, such fixtures as would pass “ by a contract of sale and conveyance of the stores and premises,” but they were put in by a tenant and the contention is that as between his landlord and himself he would have a right to remove them. That proposition, however, does not seem material to the present inquiry. It is a general rule that whatever is once annexed to the freehold, becomes parcel *502 thereof and passes with the conveyance of the estate, and this-rule, however modified between landlord and tenant, remains in full force as between vendor and vendee. The agreement to sell in this case contained no reservation; the property was. to be free from incumbrance and no meaning or intent of the parties can be discovered from it or from any circumstance in evidence, other than a general purpose that the vendee should have as part of the realty every article which would be comprehended under the general rule to which I have referred. They consisted in fact of gas piping, partitions, lead pipe,, plumbing work, water closet and basins, one in the front office and one on the store floor. The closet and basins were connected by lead pipes, and all formed part of the building when in considering the possibility of purchase, the premises were-inspected by the intending vendee, nor was any removal begun or attempted until after the execution of the agreement. The-partitions were of plank, tongued, grooved and beaded; they ran from “ the floor to the ceiling,” the whole length of the building, and these were again divided by partitions so as to make four offices, two on each street. They were in the loft and on the first and second floor, and were nailed to the ceiling, and “ were up fast.” Just before the deed was to be. executed under the contract, these articles were removed by the tenant, who had in fact put them in. The lead pipe was cut off close to the sidewalk, the water closet, basins and partitions taken down and carried away. On account of the. changes thus made in the building the defendant refused to take the premises. The vendor, Trask, offered to make compensation in money, but this was refused. If the vendor had sued in equity for a performance of the contract it is not improbable he would have succeeded, for it. seems apparent that compensation might have been made in money for the altered condition of the buildings caused by the removal of the fixtures. There might be inconvenience and delay arising from the dismantling of the stores, but not beyond the power of money to relieve, and in such a case a court of equity is not prevented from enforcing performance as to the *503 principal subject matter.. Some such case is put by the court in Richardson v. Smith (5 Ch. App. Cas. [L. R.] 654), and it was held that the value of certain undehverable articles might be deducted from the price agreed to be paid for the whole property. That exception related to furniture, and although in this case there is a difference growing out of the character of the articles, which as fixtures might under certain circumstances be deemed essential to the enjoyment of the principle thing. (Darbey v. Whitaker, 4 Drewry 134; Jackson v. Jackson, 1 S. & G. 184), they are not necessarily so here. The vendor having two remedies, one damages and the other performance, chose the former. This right, if any, to damages he assigned to the plaintiff and the plaintiff has sued. In such an action the vendor must be held strictly to the very terms of his engagement and show the performance of all the conditions on his part necessary to be performed to put the other party in default. In the present instance the defendant was entitled to the stores in the condition in which they were when bargained for, and his refusal to take them in an altered and inferior condition was not a breach of his contract. By his own failure to perform, therefore, the vendor lost his right of action at law and could convey none to his assignee. Ho other question raised by the appellant becomes important and the view taken of the case by the General Term (30 Hun, 89), and in which we concur, renders it unnecessary to discuss the various exceptions upon evidence, because however decided the result of the principal contention would be the same. The judgment appealed from should be affirmed. AIL concur, except Buger, Oh. J., not voting. Judgment affirmed.