Shepard v. Alden

¹ Reported in 201 N.W. 537, 202 N.W. 71. Plaintiff sued to recover the rental value of 12 bowling alleys, obtained a verdict, and defendant has appealed from an order denying his alternative motion for judgment or a new trial.

The alleys were located in the basement of the Iron Exchange Building in Minneapolis. The building was owned by Thomas and Atkinson until September 17, 1919, when they sold it to defendant. The alleys were installed by Benjamin A. Paust and later sold by him to one Whiting, who sold them to plaintiff on January 24, 1918. Whiting had a lease of the basement, under which plaintiff went into possession. In February, 1918, plaintiff sublet the basement and leased the alleys to Bonham and others. The sublessees failed to pay the rent and ceased to operate the alleys in April, 1918. There was evidence to show that thereupon plaintiff resumed possession of the alleys and operated them in the winter of 1918-1919. In March, 1919, Thomas and Atkinson commenced an action of unlawful detainer against plaintiff for the nonpayment of rent and obtained a writ of restitution.

As the agent of Thomas and Atkinson, Paust negotiated the sale of the building to defendant, informing him that the alleys did not go with the building and that he understood they belonged to plaintiff. The agent by whom defendant was represented in making the purchase gave him the same information. In September, 1919, plaintiff came to defendant and offered to sell the alleys. After interviewing Thomas and his attorney, defendant refused to buy, claiming title through his purchase of the building, and took possession of the alleys.

Prior to the date of the sale of the building, Thomas and Atkinson sued plaintiff for the rent of the basement. He answered, setting up a counterclaim for damages for the conversion of the alleys. The action was settled by a stipulation releasing the claim for damages for the alleged conversion for a release of the claim for rent. In April, 1922, judgment was entered pursuant to the stipulation.

1. Citing Haas v. Sackett, 40 Minn. 53, 41 N.W. 237,2 L.R.A. 449, appellant invokes the doctrine that, upon satisfying a judgment for the conversion of property, the title vests in the defendant as of the date of the conversion. He contends that when plaintiff settled the Thomas and Atkinson suit, his counterclaim for conversion was satisfied and Thomas and Atkinson then acquired title to the alleys. If this be true, it does not necessarily follow that defendant must prevail. When he bought the building he knew that the alleys were not included in the sale and that Thomas and Atkinson did not then claim ownership. There was no proof of a separate transfer of the alleys then or later. If in fact Thomas and Atkinson owned them, they continued to retain the title after they conveyed the realty.

2. Defendant testified that a long time after he purchased the building he had a conversation with Thomas in reference to the alleys. He was asked to relate the conversation, but an objection to proof thereof was sustained. He then offered to show that Thomas claimed title to the alleys on the ground that plaintiff left them in the building when he was evicted and abandoned them, and that thereafter defendant purchased the alleys from Thomas and Atkinson. An objection to the offer was sustained, and the ruling is assigned as error. If this evidence had been received, it might have connected the title the defendant claimed with whatever title Thomas and Atkinson got when the action for conversion was settled.

The materiality and relevancy of an offer of evidence must be apparent when the offer is made to put the court in error in excluding it. If the admissibility of the offered evidence depends on the proof of other facts, preliminary proof must be made to establish a foundation for the admission of the evidence. Dunnell, Minn. Dig. § 9717.

No reference to the action in which the defendant interposed his counterclaim for conversion was made in the answer. No evidence relative to that action had been introduced when defendant made his offer of proof. Such evidence was introduced before defendant rested his case, but the offer was not then renewed or called to the court's attention. Upon this state of facts defendant is not in a position to urge that the court erred in excluding the offer or in refusing to hold that as a matter of law defendant was the owner of the alleys.

3. Whether plaintiff had abandoned his property and whether he demanded it within a reasonable time, or at all, are the principal questions in the case.

Abandonment is made up of two elements, act and intention. There must be an actual relinquishment of the property, accompanied by an intent to part with it permanently, so that it may be appropriated by any one finding it or having it in his possession. Rowe v. City of Minneapolis, 49 Minn. 148,51 N.W. 907; 1 R.C.L. p. 4; 1 C.J. pp. 6-8. Plaintiff claimed the alleys immediately after defendant bought the building. The season for bowling begins in October and ends in April. Little or no use of bowling alleys is made in the summer season. The owners of the building had not notified plaintiff to remove his property from the basement. They did not regard the alleys as part of the building. They could have been removed. They were of more value to the owner if left where they were. Undoubtedly plaintiff hoped to sell them to the owners of the building. Possibly they hoped to get them without paying anything in addition to their claim for the rent plaintiff had failed to pay. Viewing the situation from any angle, it cannot be held as a matter of law that plaintiff intentionally abandoned the alleys.

4. Did plaintiff lose the right of possession by failing to make a demand for the alleys until some six months after he was evicted from the basement?

The alleys were in the nature of trade fixtures. They had been installed by a tenant, and we are asked to apply the rule that as between landlord and tenant the tenant's right to remove fixtures expires with the lease. If Thomas and Atkinson were defendants, the rule might well be applied. Erickson v. Jones, 37 Minn. 459,35 N.W. 267. But the relation of landlord and tenant never existed between plaintiff and defendant, and it had ceased to exist between plaintiff and Thomas and Atkinson before they sold the building. Under these circumstances, it is doubtful whether the rule of Erickson v. Jones, supra, is applicable. See Medicke v. Sauer, 61 Minn. 15, 63 N.W. 110; Hanson v. Vose, 144 Minn. 264,175 N.W. 113, 7 A.L.R. 1573. Be this as it may, the fact that plaintiff had been dispossessed as a result of the unlawful detainer action did not ipso facto deprive him of the right to remove the alleys. He did not vacate of his own volition, leaving his property behind him. A landlord should not be allowed to assert title to his tenant's chattels merely because the tenant did not carry them with him when he was evicted. Possibly the tenant would be a trespasser if, after the eviction, he went on the premises without the landlord's consent and removed his chattels, but this has nothing to do with the question of ownership. Under the circumstances plaintiff continued to be the owner of the alleys and had a reasonable time in which to remove them. This conclusion is supported by several well-considered cases. Bergh v. Herring-Hall-Marvin Safe Co. 136 Fed. 368, 69 C.C.A. 212, 70 L.R.A. 756; Gartland v. Hickman, 56 W. Va. 75,49 S.E. 14, 57 L.R.A. 694; Mickle Co. v. Douglas, 75 Iowa, 78,39 N.W. 198; Updegraff v. Lesem, 15 Colo. App. 297, 62 P. 342. Cases expressing a different conclusion can be found, but we prefer the doctrine of those cited.

5. The court charged that, to establish a right of action, plaintiff must prove a demand and refusal. Neither party took exception to this instruction, and therefore it became the law of the case. Dunnell, Minn. Dig. § 404. It is urged that there is not sufficient evidence to support a finding of a demand. The evidence on the point was not direct or positive, but enough was shown to warrant a jury in finding that a demand had been made.

6. Plaintiff was allowed to testify to the rental value of the alleys located where they were. This was not the proper measure of damages, but the error in receiving the testimony was cured by an instruction clearly stating the correct rule for the assessment of damages.

7. In submitting the question of the ownership of the alleys, the court said that there was no real dispute about the ownership at the time when defendant took possession. In view of the evidence of what was said when the building was sold, there was justification for the use of this language.

8. The court characterized the testimony of a witness on the subject of rental value as "clear and intelligible." This did not trench on the rule against singling out a particular witness and charging as to his credibility.

All the assignments of error have been considered. Those not specifically mentioned do not require discussion.

The order is affirmed.

On Petition for Rehearing. On February 6, 1925, the following opinion was filed: