Haskin Wood Vulcanizing Co. v. The Cleveland Ship-Building Co.

Harrison, J., delivered the opinion of the court. The court is of opinion that the bill in this case is not multifarious, and the demurrer thereto was properly overruled. There is no valid objection to the form of the bill, or its scope. It was proper that the matters of litigation embraced by it should be settled in one suit. The rights of the appellant could suffer no prejudice therefrom, and the convenience of all parties was secured thereby. Bristol Iron & Steel Co. v. Thomas, 93 Va. 25. The court is further of opinion that, under sec. 1149 of the Code, the trust deed of July 31, 1893, inures to the benefit of all the creditors of appellant existing at its date. The lan [445] guage of the statute is, “If any such company create any lien or encumbrance on its works or property for the purpose of giving’ a preference to' one or more creditors of the company over any other creditor or creditors, except to secure a debt contracted, or money borrowed at the time of the creation of the lien or encumbrance, the same shall inure to the benefit, ratably, of all the creditors of the company existing at the time such lien or encumbrance was created.” The deed in question shows on its face that it was given to secure a note executed on the 29th of May, 1893, for money borrowed by the appellant on that day. The deed being given to secure a debt existing prior to the date of the creation of the lien or encumbrance comes plainly within the terms of the statute, and inures to the benefit of all the creditors existing at its date. The court is further of opinion that the contract entered into between appellant and appellee, whereby the latter was to furnish the former certain machinery for its wood vulcanizing works, was substantially and in good faith completed and performed by appellee. The minor deficiencies, as to which it does not clearly appear whether the appellee or appellant was responsible, have been fully compensated for by an allowance for that purpose made by the commissioner in his report. The great mass of ,evidence on this subject has been carefully read and considered. It would, however, be wholly without profit to attempt to review it within the limits of an opinion. The contention of appellant that the work was not completed according to contract rests chiefly upon the grounds, first, that the person named in the written contract as the one to approve and accept the work did not perform that duty; and, second, that the machinery was not equal to the working pressure provided for in the contract. ■ It is true that the person named in the contract as the one to finally approve the work before it was accepted and paid for, did not make the necessary test and perform that duty, [446] for the reason, however, that he was absent in Europe, and his services 3ould not be secured when needed. It satisfactorily appears, however, that the duty of finally testing the machinery and approving the work of appellee was performed by a thoroughly competent expert selected by the appellant, and that it was well understood by all parties that he was acting in the place cf the expert named in the contract, whose services, so far as the record shows, could not be had at all. The second objection that the machinery was not equal to the pressure provided for in the contract rests upon the ground that the machinery would not bear a pressure equal to that required by the Government in the manufacture of marine boilers for purposes of navigation. The contract does not provide that the Government rule should be adopted in the manufacture of these boilers, and the specifications as to size, thickness of steel, &c., called for by the contract, does not admit of the application of that rule. The evidence shows that the Government rule is adopted in the construction of boilers for purposes of navigation out of superabundant caution, on account of the constant and excessive steam they have to carry, but that the rule is not regarded in the construction of boilers for land or manufacturing purposes. The evidence shows that these boilers are capable of bearing a working pressure as great as that contemplated by the contract, and as great as the dimensions and other specifications contracted for would with safety admit of; that they were built of the very best material, and are superior to the boilers of the Haskin Vulcanizing Company, of New York, which the contract provided they should be similar to, and that th»y are equal to a test and working pressure far greater than is required for boilers in a wood vulcanizing manufactory, and are, in all respects, a substantial compliance with the contract. The court is further of opinion that appellee perfected and recorded its mechanics’ lien within the time prescribed by [447] law, and that, under see. 2475 of the Code, appellee had the right to take out the lien, and is now entitled to its benefits. The contention that the work done and machinery furnished by appellee is not permanently annexed to the freehold, and does not constitute part thereof, is not tenable. Appellant was erecting works for vulcanizing wood; the machinery furnished by appellee consisted in part of four enormous steel tanks, one hundred and five feet long, and six and a half feet in diameter, the doors of each weighing seven and a half tons, and the whole of such enormous weight that they had to be shipped in parcels and put together on the premises of the appellant. This machinery practically constituted the vulcanizing works. JSTo building vas there until these enormous structures had been put together and placed in position on heavy, solid foundations of concrete and brick. The buildings were then erected around this machinery, the whole constituting one structure for the purpose of vulcanizing wood. The true rule for determining when the machinery and apparatus of a manufactory forms a part of the realty is: That where the machinery is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty, and passes with the building; and that whatever is essential to the purposes for which the building is used will be considered as a part thereof, although the connection between them is such that it may be severed without physical or lasting injury to either. Green v. Phillips, 26 Gratt. 752; Shelton v. Ficklin, 32 Gratt. 727; Morotock Ins. Co. v. Rodefer, 92 Va. 747. Applying this rule to the case at bar, it is clear that the machinery furnished by appellee constitutes part of the realty, and forms the most important part of the structure in question. The court is further of opinion that there is no valid objection to the decree of sale. Its effect is not, as contended, to give appellee a preferred lien upon all the property of appellant, but only upon that portion of it to which the mechanics’ [448] lien rightfully attached, and a lien, together with other creditors, upon the property conveyed in the deed of trust of July 31, 1893. It being a general creditors suit, in which about one hundred thousand dollars of liens had been audited, it is to be presumed, nothing appearing to the contrary, that all the creditors desired a sale, and not, as contended, that the sale was ordered for the satisfaction of appellee’s debt ■alone. It was also proper to sell the property in two parcels, that upon which appellee’s preferred mechanics’ lien rested in one parcel, and that covered by the deed of July 31, 1893, in another parcel. Upon a careful consideration of the whole case, we find no error to the prejudice of appellant, and the decree appealed from is therefore affirmed. Affirmed.