Peninsula Burner & Oil Co. v. McCaw

[570]

TYLER, P. J.

Action in claim and delivery. The property described in the complaint is an oil storage tank and a nonautomatic oil burner, together with pipes, valves and fittings necessary for the complete installation in a home. The complaint alleges that plaintiff agreed to sell the above-described equipment to one Lawton to be installed in the home of defendants which Lawton was erecting. Defendants deny that they wrongfully withheld the property and affirmatively allege that they purchased the same from Law-ton for a valuable consideration. Further, that the property was installed by Lawton in the home of respondents as improvements therein, and said equipment became a material part of the real property of defendants. The answer further alleges that after the property was installed, notice of completion of said home was filed in the office of the county recorder where the property was situate and that plaintiff filed no claim for the same in accordance with the Material-men’s Lien Law. As a separate and further defense, the answer alleges plaintiff was estopped by reason of its laches to recover the property and further, that plaintiff did not notify defendants until more than two years after the installation of the property of its alleged ownership. Trial was had and judgment was entered that plaintiff take nothing against defendants. Plaintiff appeals and claims that the personalty described did not become affixed to the realty so as to become a part thereof and that it is not estopped to assert its legal title.

From the evidence it appears that respondents entered into a contract with Lawton, the vendee of plaintiff, for the construction of a dwelling-house upon property owned by respondents. The plans and specifications show that an oil-burner system was included in the contract and was a material part of the original construction agreed to be installed. Appellant agreed to sell the heating plant to Lawton for installation in the building. The agreement of sale provided that title to the equipment was to remain in plaintiff until fully paid for. Respondents knew nothing of this arrangement. They held the required amount of the contract price until after the expiration of the time allowed by law for the filing of liens, but no lien was ever filed by appellant. Under these circumstances it seems clear to us

[571]