Zimmerman v. Treleven , 192 Wis. 214 ( 1927 )

Vinje, C. J.

The trial court failed to make findings of fact as required by the statute, and were there any substantial conflict in the evidence we would send the case back.for a finding of facts. It is a case where different inferences may be drawn from the evidence rather than a conflict therein. The opinion of the trial court aids us in determining what it found as facts, but it should clearly be borne in mind by trial courts that the statute as to findings of fact is not satisfied by an opinion.

A careful scrutiny of the evidence satisfies us that the trial court was correct as to the question of a ten-year lease. The evidence did not show that one was executed, and we affirm the judgment so far as the lease is concerned.

As to the fixtures we come to a different conclusion, and chiefly because the intention of the parties indicates that they were personalty and owned by the Treleven Company, which carried on the department store. The fixtures were suitable for such business and consisted of cabinets, counters, shelving, window backs, etc. It is well settled that the intention of the parties as to whether fixtures are removable or belong to the realty is controlling in the absence of superior rights of third parties and that a liberal rule as to removal of trade fixtures obtains in this state. Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36; E. M. Fish Co. v. Young, 127 Wis. 149, 106 N. W. 795; Brobst v. Marty, 162 Wis. 296, 156 N. W. 195; State ex rel. Hansen S. Co. v. Bodden, 166 Wis. 219, 164 N. W. 1009; 11 Ruling Case Law, 1069.

A. E. and W. F. Treleven bought the fixtures individually as stated. They also owned the building, and they also owned the Treleven Company that carried on the department store. The fact that they were paid for the fixtures by the department store shows that they intended the fixtures to remain personalty. They might have held the fixtures as realty, as they both owned the building. But they sold the fixtures to the Treleven Company and it owned only personal property. It further appears that W. F. Treleven and A. E. Treleven knew that the Treleven Company carried the fixtures on its inventory for years, and it must be assumed that when A. E. Treleven purchased the interest of W. F. Trele-ven in the Treleven Company he paid for the fixtures as well as for the balance of the property owned by the Treleven Company. It also appears that one of the plaintiffs, before they bought from the estate of W. F. Treleven, was shown the inventory of the fixtures and told that all the fixtures belonged to the Treleven Company, and plaintiffs in a proposition for a sale to them agreed to give a chattel mortgage on the fixtures for $27,000, showing they considered them to be personalty. Under such circumstances it seems clear that the fixtures should be held to be the property of the Treleven Company and not to be included in the partition sale. Should it be necessary to remove them, a reasonable time for that purpose should be allowed upon application to the trial court.

By the 'Court. — The judgment is modified by excluding the fixtures as a part of. the real estate, and as so modified is affirmed, with costs to the appellants.