Hammel Radiator Corp. v. Mortgage Guarantee Co.

CONREY, P. J.

In the year 1927, El Paula Holding Company, Inc., owner of a parcel of land in the city of Los Angeles, desired to build thereon an apartment house, which, with improved judgment, it named La Paula Apart

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ments. For that purpose it borrowed from Mortgage Guarantee Co. the sum of $250,000, to be advanced in specified installments as a building loan. A trust deed was executed to secure the loan, and the apartment house was constructed. The trust deed was duly recorded before the commencement of building operations. The plans and specifications submitted by the owner in applying for the loan specified gas steam radiators as the sole method for heating every apartment. The trust deed purported to cover said land with the appurtenances, including water, water rights, pipes and ditches, “and all buildings and improvements thereon, or that may be placed thereon”.

During the progress of construction of the building the plaintiff, Hammel Radiator Corp., entered into a written contract with the owner for the sale, and installation in said La Paula apartments, of 125 gas steam radiators at the agreed price of $3,162, payable upon completion of installation. This contract was in the form commonly known as a conditional sales contract providing, among other things, that title to said radiators should remain in the plaintiff until full payment of' the purchase price, etc., and that upon default of payment thereof the plaintiff might, at its option, enter upon said property and remove said radiators. The radiators were installed but the price was not paid. The installation was completed on or about February 8, 1928. At that time the defendant had advanced upon its construction loan a large part thereof, and the remainder thereof— approximately $48,000—was advanced and paid out to or for the benefit of the owner after the radiators had been installed, but not until after the apartments had been inspected by the Mortgage Guarantee Company’s agent to see that the radiators had been installed, and that they were all in place and connected up.

Thereafter the owner defaulted in the matter of payments due from him to the Mortgage Guarantee Company, and in accordance with the power of sale vested by the trust deed the property was sold and conveyed to appellant. The plaintiff demanded permission to remove the radiators from the premises. Defendant refused, upon the ground the radiators had become attached to the realty in such manner as to become fixtures thereof, and as such fixtures became the