Straight v. Mahoney

Opinion by Orlady, J., The plaintiff brought an action of trespass to recover in damages the value of certain “ counters, prescription case, drawers and shelving ” which were in use in a drug store that had been leased by the defendant to the plaintiff. The named articles had been placed in the drug store by a former tenant, through whom the plaintiff derived his title to them. On the trial their value was admitted to be $250, and the court, on motion of the defendant, directed a compulsory nonsuit, which it subsequently [158] declined to take off for the reasons as stated, “ that the property consisted of what is known as trade fixtures, and that the plaintiff had not taken proper steps to remove them prior to the expiration of the lease.” As to what fixtures are, is always a mixed question of law and fact. “ In all the recent cases, the true criterion has been held to be, the intention on the part of the tenant to remove the fixtures during his term, at the time he placed them upon the property.” The intention which thus becomes controlling is not the undisclosed purpose of the actor, but the intention implied and manifested by his acts : Campbell v. O’Neill, 64 Pa. 290; Heysman v. Dettre, 89 Pa. 506; Carver v. Gough, 153 Pa. 225; National Bank of Catasauqua v. North, 160 Pa. 303; Albert v. Uhrick, 180 Pa. 283; Wick v. Bredin, 189 Pa. 83; Silliman v. Whitmer, 196 Pa. 363. There is not sufficient evidence in this case to declare as matter of law that “ the two counters, prescription case and shelving ” were affixed to the real estate. From all that appears in the testimony they may have been movable articles and as easily shifted in position as chairs or tables. It is not so universally the custom to equip a drug store by physically annexing such articles to the real estate as to justify the court in holding that they were fixtures, without evidence of the intention and manner which determined their construction and use. They might readily be articles used in the profession without being trade fixtures. A jury should determine the fact, and the court erred in entering the compulsory nonsuit. The judgment is reversed and a venire facias de novo awarded.