Benedict v. Marsh , 127 Pa. 309 ( 1889 )

Opinion,

Mr. Justice Green:

The only question in this case was whether the machinery in controversy was personalty or realty. The question was very fairly and correctly submitted by the court to the jury who found it to be personalty. There was conflicting evidence on the subject, and it is clear that the determination of the issue depended upon a question of fact which could only be decided by a jury.

The machinery in dispute was a certain steam engine and saw-mill machinery put up by one Kilburn on a tract of timber land belonging to him, and used in sawing logs cut from the land. Whether the engine and machinery were portable or permanent was the question. Kilburn, the owner, had treated it as personalty by selling it to William L. Marsh, by a written bill of sale, and the latter transferred it to his son, the defendant, before the sheriff’s sale of the land, but after the plaintiff’s judgment against Kilburn had been entered. There was considerable testimony that the engine and machinery were portable in their character and were intended to be moved from one tract of timber land to another, to cut up the logs on each. This brought the case within the catalogue of cases of an equivocal character which require the verdict of a jury to determine. In Harmony Building Association v. Berger, 99 Pa. 320, we said: “ There may be some things which are so essentially a part of the freehold that as between vendor and vendee the intention of the owner may be of little weight. But this is not such a case. The articles themselves were of such an equivocal character as to raise a jury question.” That was a case in which the articles in controversy were placed in position by the owner of the premises. As between landlord and tenant, the doctrine that physical annexation alone is the test has long been exploded: Hill v. Sewald, 53 Pa. 271 ; Seeger v. Pettit, 77 Pa. 437. In Harmony Building Association v. Berger, supra, we said further that “ the object and intention of the owner is to be regarded in considering the character of the articles.”

The learned court below was very careful to say to the jury that if the character of the mill for permanency was certain, the mere intention of Kilburn to the contrary could not change it and make the machinery personalty. But we think it quite clear upon the testimony that the character of the mill for permanency was a very debatable question, and that the intention and object of the owner became very material in determining the question. In this point of view the evidence offered and received under objection and exception was highly illustrative. Thus, the witness, A. W. Day, the tail-sawyer at the mill, testified under exception as follows: “ Q. What kind of a mill was it ? A. It was a movable mill. I suppose the engine and boiler hung together, but it was movable and intended to move it; that was their calculation after they cut their stock out there. Q. Did you have any conversation with Mr. Kilburn in the winter of ’86 as to what he was going to do with this mill after finishing the timber on the Flatt lot ? A. He said he was going to move it up to the State Line Run from there.” Another witness, Whitcomb, had previously testified under objection and exception that he was the millwright who built the mill and was present with Benedict, the plaintiff, who sold the mill, and Kilburn who bought it, at the time of the sale. He was asked : “ Q. State to the jury what took place there ? A. He went and looked at this mill and decided on taking the saw-rig part, that is the saw-rig, carriage, and head blocks, and not the engine and boiler. Mr. Benedict wanted Kilburn to take the engine and boiler, but he said it was too heavy; he wanted a lighter rig and a portable boiler so he could move it. Mr. Kilburn said to Benedict that he had a small engine, that he would have it brought to his shop and overhaul it and if it needed any repairing he would repair it; and Mr. Kilburn wanted a new portable boiler. Q. What was said as to the character of the mill he wanted? A. He said he wanted a light rig that he could move; he said, over three different places; that ho wanted to move it on different lots where there was timber to cut. Q. What did ho say, if anything, about moving to different tracts of land where there was timber? A. He said he wanted to move it several times.”

The foregoing is the testimony, the admission of which is complained of in the two assignments of error in this case. We see no error in its admission. It was directly upon the very point in controversy, and indicates with much force and directness the very purpose of the owner to put in portable machinery. It has the additional force of a communication of this purpose to the plaintiff himself and would be admissible for that reason. In view of the very conservative and cautious character of the charge of the court, it was not possible for the jury to be misled as to the precise question to be determined, and the considerations to be taken into account by them.

Judgment affirmed.