Kirch v. Davies

Lrosr, J. It appears by the evidence that the defendant removed the property, which, under the direction of the court, the jury found he wrongfully took possession of, from the building conveyed by him to the plaintiff, and had loaded a considerable portion of it on a railway car, for transportation, when the writ of replevin was served. Although the property had been theretofore fixtures and part of the realty, by the act of the defendant it became personalty subject to seizure under a writ of replevin. If any of such property belonged to the plaintiff, we find nothing in his deed from the defendant which gave the defendant the right to the possession of it, although removed within the thirty days specified therein, or which deprived the plaintiff of the right to its immediate possession. Buring that thirty days both parties had, a possessory right in the premises for certain purposes; but the defendant reserved no right to remove from the building any property which he conveyed — 295 — to the plaintiff, or to interfere therewith any further than ■ was necessary for the purpose of removing the property excepted from the conveyance. The learned circuit judge so held, and overruled an objection on behalf of the defendant to the admission of any testimony under the complaint. We think the ruling correct. We think, also, that it was not error to permit the plaintiff ■to amend his complaint on the trial. That rested in the sound discretion of the trial judge, and there is nothing in the record which suggests the possibility that such discretion was abused or improperly exercised in the allowance oí the amendment. The controversy in this action is confined by the pleadings to the question of ownership of the shafts, pulleys, belts and cupola removed by the defendant. No answer having been interposed to the amended complaint, there is no issue as to the ownership of the articles added to the complaint by the amendment. Kelly v. Bliss, 54 Wis., 187. The solution of the above question depends upon the construction of the deed executed by the defendant to the plaintiff. This instrument, like all other written covenants and agreements, is to be construed in accordance with the intention of the parties thereto; and such intention is to be ascertained from the language .they have employed in the instrument, if that be unambiguous. It seems to us that there is no ambiguity in such deed, but that it is sufficiently clear and explicit in its terms to enable a court to construe it without resorting to extrinsic evidence. The deed in terms conveys to the plaintiff certain lots therein described, the buildings thereon, and certain specific property, consisting of fixtures connected with such buildings (which, if not excepted, would pass by a conveyance of the lots), and certain specified personal property in and about the premises. Were this all, we should have here the question whether the deed so written conveyed all the fixtures which would have passed by a simple conveyance of the lots — 296 — without specifying any fixtures therein, or whether the particular specification of some fixtures excludes from the operation of the deed all others not'specified. This question was very ably argued by the learned counsel, and many cases, both English and American, were cited by them in support of their respective positions. It is not thought necessary to comment upon, or even cite, these cases, because there is another clause in the deed which, we think, clearly manifests the intention of the parties in respect to those fixtures upon the land conveyed not particularly specified in the deed. As already stated, it is provided in the deed that the defendant should have the right to occupy the premises conveyed for thirty days next following the date of the deed, subject to certain possessory rights of the plaintiff. The deed also contains this clause: “ The said Nathcmiel T. Da/vies, within said thirty days, to have the right to remove from said premises all property not hereby specially conveyed.” Considering this clause in connection with the specific enumeration in the deed of the articles expressly conveyed to the-plaintiff, consisting both of trade fixtures and personal property (such as hand blacksmith tools and the like) we-cannot doubt that the parties intended to deal with all of the fixtures as personal property, and that the clause above-quoted excepted from the conveyance all trade fixtures upon the premises, as well as personal property, not specially enumerated. It results, from what has been said, that the-plaintiff can only recover the property specially enumerated in the deed. No shafts are thus specified. Hence we think-that the main shafts are included in the exception in tha deed. For the same reason it may be that the cupola was also-excepted. But this is not entirely clear. We understand from the testimony that the cupola is an iron cylinder used in the process of melting metal; that it is set in solid — 297 — masonry on the foundation of and partly under the chimney, with which it is closely connected, and is lined with mortar, which frequently burns out, and is replaced with new mortar. It may be that the cupola is so attached to and included in the structure of the building that it ceases to be a mere fixture, and becomes a part of the building itself. We do not determine this question. Whether the counter-shafts connected with the machines conveyed to the plaintiff were included in the enumeration, depends upon whether they constitute portions of such machines. If so, they passed to the plaintiff by the conveyance to him of the machines. This is a question of fact, and the testimony bearing upon it seems to be conflicting. Probably the question should have been submitted to the jury. The deed specially conveys to the plaintiff “all belts and pulleys belonging to or connected with the machinery and machines situated in said building, and hereby conveyed.” We are clearly of the opinion that this language includes all belts and pulleys used in the distribution of power from the engine to the machines enumerated. Certainly they are all connected with the engine and machines, and it may fairly and reasonably be presumed, from the language employed, that the parties intended they should pass by the deed. It was found necessary to give a construction to the deed for the purpose of determining another question argued by the respective counsel, which will now be considered. It is claimed on behalf of the plaintiff that there are no sufficient exceptions to justify the reversal of the judgment, notwithstanding the plaintiff has recovered some property which really belonged to the defendant. We think the point is well taken. To the direction given the jury to return the verdict they did return, no exception was taken, and there was no motion for a new trial. The bill of exceptions has been carefully examined to ascertain whether it contains any equivalent exception, but we — 298 — find none. The nearest approach, to it is an exception to the refusal of the court to give an instruction to the jury, proposed on behalf of the defendant, as follows: “ Under the deed to the plaintiff, read in evidence, only the property specifically described in the deed passed to the plaintiff, and that specific description does not include -the main line of shafting, nor the belts and pulleys upon the main line of shafting, except such belting as runs- from the main line of shafting directly to the machines conveyed, and the pulleys for the same.” This instruction is too broad. It excepts from the conveyance to the plaintiff the belts and pulleys on the main shafts, and some of these, as we have alreadjr determined, passed by the deed. As a whole, the instruction was properly refused, and the exception to such refusal is not available for any purpose. Racine Basket Manuf'g Co. v. Konst, 51 Wis., 156, and cases cited. Counsel for the defendant argued that the direction to return a verdict for the plaintiff is an order or determination which may be reviewed on appeal from the judgment, under E. S., p. 799, sec. 3070. The section provides that, “ upon an appeal from a judgment, as well as upon a writ of error, the supreme court may review any intermediate order or determination of the court below which involves the merits, and necessarily affects the judgment, appearing npón the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record.” These provisions have no application to rulings and determinations of the court which do not become part of the record proper. If they are of such a character that it is necessary to settle a bill of exceptions in order to make them of record, they are not reached by the statute. Unless excepted to they cannot properly be in — 299 — serted in the hill. Otherwise we might have a bill of exceptions without exceptions, which is an absurdity. The direction to the jury to return a specific verdict for the plaintiff is no part of the record proper. It can only be preserved in a bill of exceptions. Hence, the statute does not authorize a review of such direction on appeal, no exception thereto having been taken. Neither can we review the evidence and reverse the judgment because there is'no proof to support the verdict in respect to the main shafts, because no motion for a new trial was made to the circuit court. It is admitted in the brief of counsel for defendant that such a motion is necessary t© enable this court to review the testimony to ascertain whether it warrants the verdict. Such is doubtless the law, in cases determined by a jury. Hayward v. Ormsbee, 11 Wis., 3, and cases cited in Vilas & Bryant’s notes. All of the rulings of the court below on .objections to the admission of testimony, which are worthy of notice, come under one general principle. These rulings excluded testimony of the intentions, acts and negotiations of the parties in respect to the sale and purchase of the property included in the deed under consideration, before the same was executed. There is no latent ambiguity in the deed. Its terms are clear and explicit, and its construction could not be affected or aided by extrinsic evidence. The construction of the instrument was for the court, and not the jury. Hence, the offered testimony was properly excluded. If it would have sustained the construction we have given the deed, it was immaterial; if it would not have sustained our construction, it was incompetent. Hubbard v. Marshall, 50 Wis., 322; Breed v. Ketchum, 51 Wis., 164; Brown v. Everhard, 52 Wis., 205. In either case the rejected testimony was inadmissible. This rule, however, does not reject parol proof to .show what belts and pulleys were used to distribute power — 300 — from the engine to the machines conveyed to the plaintiff, it having been determined that all such belts and pulleys passed by the deed, nor to show that the counter-shafts were parts of such machines. These were questions of fact for the jury. It follows that, although an erroneous construction was given to the deed, in one particular, at least, on the record before us we are powerless to correct the error. . By the Gowt.— The judgment of the circuit court is affirmed. Upon a motion for a rehearing there was a brief on behalf of the appellant by Smith & Rogers, his attorneys, with F. J. Lamb, of counsel. The motion was denied September 19, 1882.