Powell v. Plank

COX, J. It is clear to us, and it is conceded by counsel in the argument that the contract of September, 1906, whs a lease with an option to purchase, and that while the mining company was in possession, under that contract, the relation existing between the plaintiff and the mining company was that of lessor and lessee. Appellant’s counsel now contends, how [413] ever, that the contract made in July, 1907 snperceded the contract of 1906, and was in itself an entirety, and was a contract of sale without any lease provisions, and, hence, that the position of the mining company after the execution of this contract was that of vendee under contract of purchase, and, hence, the mining machinery and tools used in the operation of the mine became fixtures and a part of the realty, and could not be mortgaged, sold or removed, after his right to enforce the contract of purchase became forfeited by lapse of time. In determining the rights of the parties in this action it is necessary at the outset to ascertain their relation to each other as fixed by the contracts offered in evidence and the chattel mortgage. In construing the contract of July, 1907, it will be necessary to consider it in the light of the surrounding circumstances, the condition of the parties at the time and the purpose for which it was executed. This contract, after providing for the sale of the land and the manner in which it was to be paid for, the dates at which the payments were to be made and the deed executed, then contains this clause: “It is hereby further agreed between the parties that said, party of the second part may retain possession of all such parts of said premises, as it how occupies, and pursue its business of mining for ores, during and until this contract is finally consummated, as contemplated, on the first day of September, 1907.” This clause cannot be properly understood without referring to the first contract, under which the mining company was in possession of the land, and operating the mine at the time of the execution of this contract. This clause, above quoted, is evidently intended to keep in force the provisions of the former contract as to possession and the business of mining, and when we look to the former contract we find that under it the mining company was to pay rent for the buildings it [414] occupied and pay royalty upon tbe ore which it mined, and if the mining company should elect to purchase the property, the amount paid as rent and royalty was to be credited upon the first payment of $15,000 due September 1, 1907. The provision in the contract of July, 1907, is that the possession of the mining company and the continuation of its mining business should continue “during and until this contract is finally consummated/, as contemplated, upon the first day of September, 1907.” Now to consummate, as the term is here used, means to complete, and therefore, it must have been understood by the parties to this contract at the time of its execution, that it was not complete when signed and would not be until the conditions to be complied with on September 1, 1907, had been performed, and, as if to emphasize this provision of this contract it was provided in another clause that time should be of the essence of this agreement. In view of this language and the fact that this contract was entered into in order to meet the objections of a prospective purchaser of stock in the mining company, and the further fact that no payment was ever made on the land, and the plaintiff allowed the mining to continue without protest or demand for possession, and claimed royalty upon all ore mined, it seems clear to us that the plaintiff and the mining company have, by their own conduct, mutually acquiesced in, construed this last contract to mean practically the same thing as the first except as to the terms of payment in case of an election to purchase. And, furthermore, we think this is the only rational construction to be put upon it. It follows then that the mining company remained in possession as tenant, with an option to purchase, until September 1, 1907, at which time the option expired and after that date its position was that of tenant at will. Having determined the relation of the parties we next come to the question of their rights to the prop [415] erty. It is conceded that the mining company placed all the machinery on the land, and bnilt the engine house. As to the machinery it is clear that it was mining machinery, and hence, was chattel and could be sold or mortgaged. [Brown v. Baldwin, 121 Mo. 126, 25 S. W. 863; Springfield Company v. Cole, 130 Mo. 1, 31 S. W. 922.] The engine house was of little value — was built around the machinery after it had been placed and was not built as a house upon the land for any purpose connected with the land or its use — disconnected with this particular engine and boiler. It was not intended as a permanent building in which to house machinery, but was temporary in its character, and used solely as a shelter for this particular machinery. It occupied about the same relation to this machinery and the land as would a tent stretched oyer this machinery for the same purpose, and we think, could be removed, mortgaged or sold, under the same circumstances as could the machinery itself. It is further claimed by appellant’s counsel that this machinery, not having been removed within a reasonable time after the mining company ceased operations, that for that reason it cannot now be removed at all. Having determined that the mining company, after September 1, 1907, was a tenant at will, it follows that they were not required to remove the machinery until the plaintiff had given them notice to quit as provided by the statute. [Section 4110.] The judgment in this case, as far as complained of, is for the right party, and will, therefore, be affirmed. All concur.