Finck v. Lamphere ( 1915 )

Kruse, P. J. (dissenting):

I think the title to the property in question was involved in the action of Finck v. Lamphere, and the ownership'thereof, in ■ effect, adjudged to be in the defendant. It was contended in that suit on behalf of Lamphere that the articles in controversy were personal property, belonging to the fertilizer company of which he had been appointed receiver. If they were not, but were attached to the land by the company so as to become a part thereof, and title thereto passed with the land to the Fincks upon rescission of the contract, the value of the articles which had been so attached by the fertilizer company should have been taken into account in fixing the amount of the recovery against the Fincks in that suit. The receiver was entitled to recover not only the amount which had been paid upon the purchase price, but the added value of the permanent improvements which the fertilizer company had put upon the land and which would go back with the land to the Fincks. It does not appear that any such allowance was made, but there is an express finding in the decision that the articles in controversy are personal property belonging to the fertilizer company, which seems to negative any such allowance.

The question arose upon the trial of that suit as to whether the rental value of the premises for the time the fertilizer company had occupied the premises should not be offset against the purchase money which the fertilizer company had paid to the Fincks. It was urged in this court that no such allowance had been made, and that the Fincks were entitled thereto. The .point was considered by us, but in the absence of any evidence of the rental value of the premises the amount of the recovery' was not disturbed. Upon appeal to the Court of Appeals, however, the recovery was reduced. While we are not informed by the decision of that court as to the ground upon which the reduction was made, it is quite probable from a computation that an item of $1,700 for insurance money was taken out of the recovery and that the interest allowed upon the purchase money paid was also deducted as an offset to the use and occupation of the premises by the fertilizer company; but in making that adjustment the question as to whether the articles in question were to pass to the Fincks or remain the property of the fertilizer company was important, for if they did actually pass with the land to the Fincks and were put upon the property by the fertilizer company, an allowance should have been made to the receiver therefor, which apparently was not done.

I think the question as to whether the title to the property in question passed to the Fincks or remained in the fertilizer company was involved in the first suit, and that the judgment in effect determined the title to be and remain in the fertilizer company, and that it did not pass to the Fincks with the real estate; and if that conclusion is correct the case was correctly disposed of and the judgment should he affirmed.

Robson, J., concurred.

Judgment reversed and new trial granted, with costs to appellants to abide event.