Charlotte Furnace Co. v. Stouffer

[340] Opinion, Mr. Justice Green: The nonsuit ordered in this case can only be sustained upon the theory that the plaintiff’s testimony showed such an interest of the defendant in the inclined plane, to recover which the action was brought, as to deprive the plaintiff of any right of recovery therefor. After a repeated and most thorough reading of the testimony, we fail to discover such evidence. By the terms of the contract between the plaintiff and defendant the plaintiff was to build the plane at its own expense and the testimony shows this was done. It was further agreed that the defendant was to deliver the ore conveniently for loading on cars of the incline, which was to be operated by the plaintiff. It was also agreed that if more ore than 3000 tons was mined, the defendant should have the privilege of selling the excess to other parties, and in that event he was to pay five cents per ton to the plaintiff for the use of the incline and tramway for the term of four years. This contract is the only written evidence as to the relation of the parties to the incline and tramway, and so far as it goes it certainly is altogether inconsistent with any ownership of the defendant therein. If the defendant was to pay the plaintiff for the privilege of using it, the structure cannot be regarded as having been considered by the parties as belonging to the defendant, but precisely the opposite. In point of fact, Stouffer used the incline to ship ore during the whole of the four years after the 3000 tons were shipped, and it is to be presumed he paid the contract price for the privilege, though there is a singular lack of testimony on this subject. After the four years expired the plaintiff undertook to take possession of the structure, but the defendant refused to allow this to be done, and hence this suit. The defendant now claims title to the structure, and in support of his claim alleges that he became owner by virtue of the right which a landlord succeeds to, when a tenant voluntarily erects fixtures on the leased premises and leaves them there-when he leaves the premises. Even that right is subject to an exception in favor of trade fixtures, but in this case we fail entirely to discover the relation of landlord and tenant between these parties. There was evidence that the incline was erected principally on land of D. H. Pershing, and that Pershing had made an article [341] of agreement in relation to the use of the land with Everson, Knapp & Co., who had assigned the agreement to the plaintiff. We are not permitted to know the contents of this paper because it is not printed and does not appear on the record, and yet we are expected to pronounce upon it. If the case of tho plaintiffs in this court depended upon the contents of this paper, we would be obliged to decide against tliem for want of knowledge of tbe paper, but as they have a prima facie ease without it, and the paper does not purport to confer any right upon the defendant, it is not so material in that regard. Tho defendant however has shown no title to the land upon which the incline was built, so far as we can discover, and no relation of landlord and tenant as between him and the plaintiff. The agreement to pay for the use of the incline is inconsistent with any ownership therein on his part, even if he were landlord, and as he had a right to the possession and use of the incline during the four years, no inference of an abandonment of it to him arises from the fact that the plaintiff was out of possession at the time its claim was made. The case was incompletely tried. There was an absence of evidence which ought to he in it. Only the plaintiff’s testimony was heard. The agreement made by Pershing, though given in evidence, is not printed. An alleged lease to Stouffer is referred to, but was never given in evidence and of course we know nothing about it. It is very plain to us that it was error to order a nonsuit upon the state of the record as it comes to this court. Judgment reversed, and new venire awarded.