Pacific Mortgage Guaranty Co. v. Rosoff

SHINN, J.,

pro tem.

Plaintiff prevailed in this action to enjoin defendants from removing certain wall beds, linoleum and curtain rods from an apartment building, the finding of the court being that the articles were fixtures and subject to the lien of plaintiff’s trust deed on the real property. Defendants Jacob and Mary Rosoff, owners of the property, consented to the injunction. Defendant Carroll, contractor for the building, resisted the injunction, claiming that he had furnished the wall beds, linoleum and curtain rods to defendants Rosoff and installed them in the building under an agreement reserving title in himself until they were paid for. He claimed the right to remove them because of the purchasers’ failure to pay, and he alone appeals from the judgment.

Defendants Rosoff borrowed from plaintiff $90,000, for use in the construction of an addition to their building, and gave their note and trust deed for the amount. The original specifications did not call for the beds, linoleum or curtain rods, but by amended specifications, agreed to by the Rosoffs and plaintiff, and on file with plaintiff before construction was commenced, and during the time it was under way, these additional articles were called for as a part of the construction. Defendant Carroll contracted with the Rosoffs to construct the building according to plans and specifications on file with plaintiff. The court found that the property in question was attached to the real property, was a part of the consideration for the making of the loan, and was required by plaintiff as a part of the security under the deed of trust. It was also found that the removal of the property would impair plaintiff’s security and cause it to suffer great and irreparable injury.

In support of his argument for reversal, appellant urges the following: that the articles were not fixtures; that he had no knowledge that the property in question was included in the specifications for the construction of the

building;

that he furnished the same to defendants Rosoff under an oral

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conditional sales contract, of which plaintiff had sufficient notice to put it on inquiry as to the terms of the sale, and that as the Rosoffs did not pay him for the beds, etc., he therefore had the right to remove them.