Opinion
37574.
DECIDED MAY 1, 1959.
Complaint. Fulton Civil Court. Before Judge Camp. December 10, 1958.
Bullock, Yancey Mitchell, Harris Bullock, Kyle Yancey, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, Thomas C. Shelton, contra.
In order for a plaintiff to maintain an action for property allegedly converted by a defendant and to successfully withstand a motion for a nonsuit, he must have title to the property involved, or right of possession thereof.
DECIDED MAY 1, 1959.
Hudgins Company, Inc., brought suit in the Civil Court of Fulton County against R. F. Olds alleging substantially: The defendant, prior to the time the State Highway Department began the acquisition for the Expressway lands in the southeast section of Atlanta, owned the premises and building thereon known as # 325-327 Capitol Avenue, S.E. At the time the Highway Department purchased the premises from the defendant there was located in the building erected thereon a certain electric freight elevator and a steam boiler. After the department had acquired this property, and while such elevator and boiler were in place on said building, the plaintiff submitted a bid to wreck said building, which bid was accepted by the State, and the plaintiff later was given authority to wreck the building. As a part of the plaintiff's agreement with the State the plaintiff was to receive all salvage, including the elevator and steam boiler. Thereafter, and prior to the time the defendant vacated said building, the defendant wrongfully removed or had removed from said premises this freight elevator and all parts of same, together with said steam boiler and all of its parts. When this elevator and steam boiler and parts thereof were so removed or considered to be removed from these premises by the defendant, the same belonged to the plaintiff. As a result of the removal the plaintiff sustained a loss of $600 for which judgment is prayed. The defendant answered and denied the material allegations of the petition.
The case came on for trial before Hon. Thomas L. Camp, Judge of the Civil Court of Fulton County, without a jury, and the evidence for the plaintiff showed substantially as follows: Harold T. Hudgins, an officer of the plaintiff corporation, testified that the plaintiff was engaged in the business of wrecking and excavating buildings; that the plaintiff submitted a bid to demolish the premises formerly owned by the defendant; that the witness first inspected the premises July 4, 1957; that at that time the boiler and elevator were in place on the premises; that the last time the witness saw the elevator and steam boiler was in March, 1958, before authority to demolish the property was received on April 9, 1958; that the steam boiler was attached to the building by being encased in concrete and brick and attached to the floor; that the elevator was within steel elevator shafts which were anchored to the floor of the building; that both the elevator and the boiler were attached to the building on the premises of the defendant, which property was acquired by the State; that the value of the elevator and the steam boiler, according to his experience, was that the elevator was worth $250 and the steam boiler worth $350. He testified that after he saw the elevator and boiler on these premises and attached to the building in March, 1958, and undertook to wreck the house shortly after April 9, 1958, the elevator and steam boiler had been removed from the building. He testified that he then called the defendant and asked about the removal of the elevator and the boiler and the defendant "readily admitted that he had, and went on to say that he had them in his possession, and he was going to keep them in his possession." It was stipulated and agreed between the parties that the defendant was the owner of 325-327 and 331 Capitol Avenue and that the elevator and boiler in question were located at this address; that the defendant had owned the land and building since some time in 1940 and that a certified copy of a warranty deed dated February 19, 1958, conveying such property to the State was produced in court; that there was no agreement or mention in the deed as to the elevator or boiler in the building. A right-of-way clearance contract, dated September 26, 1957, between the Highway Department and the plaintiff, was introduced in evidence, which contract provided for the removal by the plaintiff corporation of some 182 parcels of lands described by street and number, for a consideration of $56,553 and as to the premises of the defendant the plaintiff was to receive a consideration of $1,000.
The contract and proposal submitted by the Highway Department provided for "complete removal of all rubbish, refuse dumps, debris from the right-of-way and easement areas" and "it is the intent of the plans and special provisions that any material salvaged by the contractor from clearing the right-of-way under this contract shall become the property of the contractor."
On the conclusion of the evidence, on motion of the defendant, the trial judge "ordered and adjudged that the motion by the defendant for a nonsuit should be and it is hereby sustained and the case is hereby dismissed." This was dated December 10, 1958. To this judgment the plaintiff excepted directly to this court.
It is true that the testimony for the plaintiff established that the elevator and steam boiler were so affixed as to become a part of the realty, but the question now presents itself as to whether or not the plaintiff had title to such fixtures so as to allow him to maintain this action for the value of the elevator and steam boiler allegedly converted by the defendant, and to thus withstand a motion for a nonsuit. Although Code § 81-116 provides that a nonsuit will not be granted for a merely formal variance between the allegata and the probata, a plaintiff must nevertheless prove the case substantially as laid, and cannot recover upon another and different cause of action than that set forth in the petition. See Copeland v. Geise, 96 Ga. App. 503 (2) ( 100 S.E.2d 736). The petition in the instant case alleged that the plaintiff "submitted a bid to wreck said building, which was accepted by the State and petitioner was authorized to wreck said building; and as a part of its agreement with the State, the petitioner was to receive all salvage, including the elevator and steam boiler." The petition alleges also "that said steam boiler and electric freight elevator belonged to the petitioner at the time they were removed or caused to be removed by the defendant Olds."
The proof showed that the plaintiff was a wrecking company which entered into an agreement with the State to clear the premises in question for highway purposes for the sum of $1,000. At the time the State acquired title to the premises the elevator and boiler were still attached and were thus a part of the realty. The plaintiff's contract with the State provided, as to such property, only the following: "It is the intent of the plans and special provisions that any material salvaged by the contractor from clearing the right-of-way under this contract shall become the property of the contractor." Clearly, nothing on the premises became the property of the plaintiff at the time the bid was accepted, because it had not yet been salvaged, nor could it become the plaintiff's material until salvaged by the plaintiff. This authority to demolish was received by the plaintiff on April 9, 1958. The record shows that the elevator and steam boiler had been removed from the premises by the defendant prior to that date. "Material salvaged" must refer to material removed from the State right-of-way, and, accordingly, must mean personalty as distinguished from realty. Code § 85-105 provides that "anything detached from the realty becomes personalty instantly upon being so detached." The boiler and elevator, upon being detached from the property, became personalty, but they were detached and removed before the plaintiff entered upon his duties of clearing the right-of-way and accordingly were not salvaged by him. The evidence of the plaintiff establishes that at the time this was done, title was in the State, and nothing in the plaintiff's evidence negatives, for example, the possibility that the State had sold or otherwise released the property in question to a third party prior to the plaintiff's authorization to proceed with the work. To maintain this action it was necessary for the plaintiff to prove that the boiler and elevator belonged to it at the time they were removed, which was prior to the time the plaintiff was authorized to enter and start clearing the land. See Anderson v. Reese, 85 Ga. App. 437 ( 69 S.E.2d 656). At that time the plaintiff had no authorization to salvage any material whatever. Accordingly, the plaintiff failed to show any title in himself sufficient to support the action, and the grant of the nonsuit was not error.
Judgment affirmed. Townsend and Carlisle, JJ., concur.