Smidt v. Overholtzer

PEEK, J. By his complaint plaintiff sought recovery for the alleged conversion of certain machinery and compensatory as well as exemplary damages. Defendant, by his cross-[752]complaint, also claimed conversion of the same equipment as well as one additional item, and likewise claimed both compensatory and exemplary damages. Further damages were sought for injuries to electrical wiring on defendant’s property. The court found in favor of plaintiff, and defendant appeals. It is his contention that there was no proof of conversion, and he further contends that the written disclaimer and waiver of any rights to the property in question was obtained by duress and undue influence and that the machinery was affixed to and hence a part of his real property. We find no merit in such contentions and conclude that the judgment must be sustained.

The record shows that the defendant was the owner of certain real property upon which was constructed a lumber remanufacturing plant in which certain machinery had been installed for such operation. The corporation to which he had leased the property had plaintiff install the machinery here in question. Plaintiff’s original ownership was admitted by defendant when, in answer to a question addressed to him by the court, he stated that he knew the corporation was leasing the same from the plaintiff. The corporation went into bankruptcy shortly after it took possession, and the plant was shut down. During that proceeding both of the parties herein claimed the particular machinery as their own. Defendant was represented by his present counsel and the plaintiff by Mr. Golis. During a hearing in the bankruptcy proceeding the defendant told Attorney Golis that he did not “claim ownership of this planer but he did so on the advice of his counsel, ’ ’ and at the conclusion thereof he informed plaintiff that he did not want the machinery in question left on the property. But when plaintiff went to the premises to take the machinery following the conclusion of the bankruptcy proceeding, he was informed by defendant he did not want him trespassing on his property. However, that same afternoon, defendant requested Attorney Golis to prepare for his signature a disclaimer of interest in the machinery. By the terms of that agreement, defendant disclaimed any interest in the machinery in question; granted plaintiff, as the owner thereof, permission to go upon the premises and remove his property; granted plaintiff the right to allow the same to remain on those premises for the consideration of $5.00 per month rental; and gave plaintiff seven days after notice to remove the same. At the time the agreement was executed defendant stated that he had no interest in