Best Manufacturing Co. v. Cohn

BUCKLES, J.

This is an action in trover for the conversion by defendant of a gas engine and its attachments and for the recovery of the value of the same.

The action was tried before the court without a jury upon an agreed statement of facts and other evidence, and the court gave judgment in favor of plaintiff for the sum of $1,400, the value of the engine, and $50 expenses. The find

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ings show that one B. B. Bullock, who was the superintendent of the Prosperity Mining Company, procured of plaintiff one forty horse-power crude-oil engine, together with the fixtures thereof, consisting, of one sparking dynamo, battery, pulley, shafting and boxes, the price—$2,100—to be paid for in installments, the title to remain in plaintiff until the purchase price was fully paid and then plaintiff to sell and convey to Bullock. The agreement was in writing and not recorded. The engine and its attachments were received and set up on land belonging to defendant but which was then under lease to. Prosperity Mining Company. That this machinery was affixed to the said mining land in the following manner: “A solid foundation of concrete or cement was constructed mostly below the surface of the ground. Upon this concrete foundation the said crude-oil engine was placed and securely and solidly bolted thereto and the whole inclosed within a certain portion of a wooden building erected by the said Prosperity Mining Company on the land of defendant.”

That said machinery could not be removed from the position in which it was placed by said Bullock without the partial destruction of said building and without the removal of said bolts, and consequent injury to said cement foundation. The defendant had no notice or knowledge of the terms and conditions under which said engine and attachments were purchased, and had no knowledge the same were not paid for. The lease between the defendant and said Prosperity Mining Company provided for the erection of certain mining improvements by the lessee, among which was the placing thereon of a mining plant and machinery. The lease also provided that in case of breach of covenants by lessee, the lease might at the option of the defendant terminate, and that the leased land and all the improvements placed thereon revert to the defendant. This lease had been duly recorded prior to the furnishing and setting up of said machinery. The plaintiff directed the placing of said machinery which was placed on'said land for mining purposes, and was being so used when this action was commenced.