Camp v. Charles Thatcher Co.

Anderson, under his lease, was bound to provide the plaintiff's building immediately with a suitable and proper system of heating, connected with the heater in his hotel, in consideration of which the plaintiff was bound to pay him $800 and to give him all sinks, house boilers and washtubs then in her building. He undertook to make this provision by his contract with the defendant. By that, the defendant was to put in the new apparatus and receive the old in part payment; but no title to the new was to pass to Anderson until full payment had been made, and it was to remain personal property, however it might be annexed to the building. There was thus, in effect, a conditional sale of the new apparatus. That it was coupled with an agreement by the vendor to set it up in a particular building, did not relieve it from the operation of the recording statute (Public Acts of 1895, p. 565, General Statutes, Rev. of 1902, § 4864). The contract was never acknowledged. Not having been recorded, also, until more than two months after its date, and then one month after its substantial execution on the part of the defendant and the payment to it by the plaintiff of all that she was to contribute towards the expense of the improvement, it was, as matter of law, not recorded within a reasonable time. The sale, therefore, as respects the rights of the plaintiff, was an absolute one, whether the apparatus is or is not to be regarded as permanently attached to the building.

But it was so attached to it as to become part of the realty. The mode of attachment, where an article is claimed to be a fixture, is less important than the intention of the parties in making the attachment. Tolles v. Winton, 63 Conn. 440,445. In the present case, the lease shows that plumbing of one kind was to be ripped out of a city block and replaced by plumbing of another kind, by the lessee, but mainly at the expense of the lessor. It would naturally be expected, under these circumstances, that it should be put in to remain. To remove it would leave the building considerably marred, and the value of the apparatus after removal would be very much below its cost. All this must have been foreseen when the lease was executed, and also by the defendant when it made its contract with Anderson. The effect of what was done under these instruments must be determined in view of the results that were thus contemplated.

That the defendant regarded the plumbing as an improvement of, and so as an addition to, the real estate, is also established by its notice to the plaintiff that it intended to claim a mechanic's lien, — a notice after which she refused to make any payments towards the cost of the apparatus, until the claim was waived.

It is contended that the plaintiff, to have equity, must do equity, and that her complaint should have alleged a willingness to pay the difference between the contract price of $1,089 agreed on, and the $889 which she has paid to the defendant on Anderson's order.

The plaintiff was a stranger to that contract. She was ignorant of its terms until after all work done under it had been completed. Anderson was absolutely bound to provide her building with the new apparatus, on her paying him $889, and became so bound in sole consideration of her agreement to pay that sum. Having paid it, it is of no moment to her that he may owe a greater sum to the contractor by whose agency the apparatus was put in.

The defendant now threatens to replevy the articles which it supplied. Being real estate, they are, of course, not legally repleviable. They are, however, physically capable of detachment. If detached, they would, as respects the plaintiff, lose most of their value. Her building would also be left in bad condition, and annoyance given to its present tenant, although the extent of his, and therefore of her damage, by such annoyance, it would be difficult to ascertain, by reason of the uses for which his lease was taken. She cannot, under these circumstances, be said to have adequate remedy at law, and is therefore entitled to the injunction which she asks.

The District Court of Waterbury is advised to render a judgment in her favor, with costs, in conformity with this opinion. Costs will be taxed, also, in her favor in this court.

In this opinion the other judges concurred.