Morrison v. Sohn

SMITH, P. J. The plaintiff’s petition alleged that she was the owner of a two-story building situate on a certain lot in Kansas City, and that the defendant, her tenant, carried on a saloon therein; that there was in said saloon certain valuable fixtures consisting of panels, mirrors, doors, windows, tiling, floors, sideboards, counters, vaults and other chattels which belonged to plaintiff and in which the defendant fraudulently claims some interest, and threatened to remove and sell; that the defendant was insolvent, and that plaintiff had no adequate remedy at law, etc. The prayer was for an injunction to restrain and enjoin defendant from selling or removing said fixtures, etc. The answer was (1) a,general denial; (2) title in defendant acquired by purchase of George Joffee. There was a trial and decree, “that the plaintiff is entitled to the panel work in which the mirrors are placed constituting the inside finish of the walls of the building, and the defendant is perpetually enjoined and restrained from removing .the same from the building, and the court finds the issues for the defendant and that he has a right to all the mirrors in said building, both counters, the doors opening into the space used as a refrigerator, the chandeliers and the brass rods in said building, and the temporary injunction against defendant removing [79] such property is dissolved,” ete. The plaintiff brings the'cause here by appeal. The plaintiff leased the said lot to the Heim Brewing Company for a term of five years. One of the provisions of the lease was to the effect that the lessee was to remodel and repair said building at an expenditure not to exceed two thousand dollars, not including fixtures, and at the end of the term to surrender the possession with all keys, bolts, latches and repairs in as good condition as received, the usual wear and use excepted. The Heim Brewing Company did not occupy the premises but sublet the same to George Joffee, who made the improvements required by the provisions of the lease from plaintiff to the lessee, the Heim Brewing Company. Joffee leased the premises and made the improvements thereto with the intention of conducting a dramshop therein. He placed the fixtures, described in plaintiff’s petition, in said building to be used in connection with that business. It seems that Joffee was the proprietor of another dram-shop, and owing to a ruling of the county court that not more than one license would be issued to any person, he found it necessary to transfer the dramshop in question to one Helzberg, in whose name the license was obtained and the dramshop conducted. Helzberg gave Joffee a mortgage on the fixtures, stock, etc., to secure notes amounting to $5,000. To all outward appearances, the dramshop belonged to Helzberg. It seems, however, that in fact Helzberg was but a bartender for Joffee, and .that the'former was not in fact the owner, but that the latter was. Such latter superintended the business and controlled it as such owner. It was carried on in that way until December, 1891, when a fire occurred, partially marring and destroying the fixtures and interior of the building. The business was then discontinued, Helzberg going away and Joffee continuing in possession of the building and the fixtures [80] and stock therein. He paid the rent to the Heim Brewing Company. In June, 1892, Joffee, through one Kaiser, who was plaintiff’s agent to rent the property and collect the rents therefor, sold the said fixtures to the defendant. The defendant bought the fixtures and rented the building of Kaiser. It appears that the Heim Brewing Company had refused to pay the rent for the months of November and December, 1890, and January, 1891, and suit was brought therefor against it by plaintiff. In June, 1892, the Heim Brewing Company, under an agreement with the plaintiff, surrendered said lease. The sale to defendant was made three days thereafter. The right of the Heim Brewing Company to sublet the premises is not questioned. The uncontradicted evidence was that under the sublease, Joffee reserved the right to remove the fixtures at the end of his term. There was evidence adduced which tended to prove that while Joffee did not conduct a dramshop in the building after the fire, he retained and had possession of such building from the time he entered under his lease until his sale to defendant. No one else was shown to have been in such possession. He was in possession under his sublease and so being had the right to remove the fixtures or to transfer them to the succeeding tenant. These fixtures did not become incorporated with the realty but remained the personal chattels of Joffee. They were put in the building with the understanding that they were not to become a part of the realty but were to be the personal property of the tenant. There was -eyidence tending to show that the fixtures could be removed without injury to the reversion. They were attached to the building in such a way as to be easily removed. They were not a. part of the permanent structure. It seems clear to us that under the authorities they were but personal property of Joffee, and that he had the right to [81] remove or dispose of the same at the time he did so. Kuhlmann v. Meier, 7 Mo. App. 250; Dryden v. Kellogg, 2 Mo. App. 87; Walsh v. Sichler, 20 Mo. App. 370; Hines v. Ament, 43 Mo. 298; Bircher v. Parker, 43 Mo. 118. It would be strange indeed if the plaintiff, after her agent in his negotiations with defendant which resulted in the renting of the building had encouraged him (defendant) to purchase of Joffeé the said fixtures, could now be heard to claim that the same were a part of the building and, therefore, not the personal property of Joffee. If Joffee was in possession at the time of the surrender, then the plaintiff in .accepting such surrender occupied, as to him, the attitude of a stranger purchasing the premises. She wordd be affected with notice of Joffee’s rights and be bound to' regard his rights under his sublease. Such surrender did not have the effect- to deprive Joffee of his right, under the sublease, to remove the fixtures or otherwise dispose of them. Ritzler v. Ralther, 10 Daly 286. There was further evidence that defendant rented the premises with the understanding that he should have the right to remove the fixtures bought of Jbffee as well as those put in by himself. In Bircher v. Parker, supra, it was said: “As between landlord and tenant, the rule in regard to the removal of fixtures is most liberally construed in favor of the latter; as the landlord pays nothing for the improvements put up by the tenant, policy and justice demand that the tenant-should be allowed to remove the additions or improvements unless the removal would operate to the prejudice of the inheritance by leaving it in a worse condition than when he took possession.” Applying this rule to the facts which the evidence tends to prove in the present case and we must concur in the conclusion reached by the trial court. [82] The evidence was quite conflicting, and it must be conceded that there was evidence that would have justified a contrary finding by the court; but the rule is that the reviewing court, in cases of this kind where the evidence relating to a controverted issue is conflicting, will defer to the finding of the trial court. Erskine v. Loewenstein, 82 Mo. 301; Chapman v. McIllwrath, 77 Mo. 43; Chouteau v. Allen, 70 Mo. 336. It therefore results that the decree of the trial court must be affirmed. All concur.