Opinion
05-16-1888
HAY et al. v. TILLYER et al.
C. S. King and D. J. Pancoast, for complainants. T. E. French, for defendants.
On bill for injunction.
C. S. King and D. J. Pancoast, for complainants. T. E. French, for defendants.
BIRD, V. C. The complainants are the owners in fee of certain land upon which have been built glass factories. In 1884, they leased these premises to the defendants. Before the defendants took possession the complainants sold and delivered to them a large amount of personal property upon the premises. A considerable portion of this personal property had been and was fitted for use in the manufacture of glass. The property thus sold was very carefully inventoried. A list of several hundred items was made, and the value of each article set opposite thereto. The object of this suit is to restrain the defendants from removing three furnaces from these premises. The complainants say that it was according to custom not to remove such furnaces at the end of a term; they also say that, although not in writing, it was understood and agreed between the parties that these furnaces were to remain at the end of the term; and they also say that everything which it was intended should become the property of the defendants was sold to them, and included in the inventory above referred to, and that everything not so included was intended to remain in and belong to the complainants. The defendants, upon the other hand, insist that they bought these furnaces, together with the other items of personal property, and that they are entitled to remove them by virtue of such purchase. They claim that they not only purchased them, but that thematerial which they then purchased has been lost in the new material which they have from time to time used in the construction of other furnaces, so that the present furnaces are entirely their own independently, and that, as trade fixtures, they are justified in removing them.
These furnaces do not become part and parcel of the real estate, as trade fixtures often do. They are built and put in place every year. It seems that one blast, which lasts for several months, has such an effect upon them as to render them unfit for use for another blast, or another year. They are placed upon a solid foundation, and are sometimes made of sandstone; but the better or more durable ones are made principally of German clay, which is worth from $12 to $15 per ton. At the end of a blast the furnace is entirely removed, and the glass which adheres to the clay is chipped therefrom, and the clay which is not lost in this process is again prepared, and again used in the construction of other furnaces. For three years the defendants removed the old furnaces, and replaced them in the manner indicated. During the last year, although they erected three new ones, they only put two in blast; all of which, however, they are about to remove. The complainants rely very earnestly upon the custom among glass-blowers, when premises for glass-blowing are leased, for the tenant, on surrendering the term, not to remove the furnaces, however much they may be denominated trade fixtures. I do not think that this insistment can prevail. There has been no such proof of the practice as entitles it to the dignity of a custom which, when established, is law. But the insistment that it was understood between the parties, when the inventory of the goods and chattels was made, that these furnaces were not to be included therein, and that they were not to be included because they were to remain when the lessees surrendered the premises, has much greater force. The fact that every other article, so far as appears, which the complainant owned, and which were to be used by the defendants in the manufacture of glass, was itemized, inventoried, and valued, offers a strong presumption in the law that there was no intention upon the part of the complainants to sell, or upon the part of the defendants to buy, the furnaces that were then in position on the premises. It is true, the defendants say that they purchased these, with other things, and paid therefor; but an intelligent witness, who had been in the employ of the complainants, and continued in the employ of the defendants, was called upon, when the inventory was about completed, and values were being fixed, and inquired of respecting these furnaces, among other things, and he says that he then remarked, in the presence of the parties, that they should not be included in the inventory, but should remain there as they were, for, that, when the defendants left the premises, they would leave the furnaces also. He had constructed the furnaces for the complainants just before the defendants took possession; and out of the furnaces which the complainants had used, together with other material, he constructed new furnaces for the defendants immediately upon their taking possession, and did from time to time afterwards. The question, therefore, does not seem to me to depend upon custom, or upon the right of a tenant engaged in trade to remove a trade fixture, but upon the contract either distinctly entered into between the parties, or fairly to be inferred from what transpired between them at the time the negotiations were made and completed. The plain inference is that these furnaces were not sold to the defendants, and that the understanding between them was that, as they used the old furnaces which they found there on taking possession, so when they gave up the possession, they were to leave the furnaces which they had used upon the premises. I conclude, therefore, that the complainants are entitled to a decree, and that the injunction should be made perpetual, with costs.