Morris's Appeal

Mr. Justice Mtcecub

delivered the opinion of the court, May 5th 1879.

The appellant is an assignee in trust for’the benefit of creditors. He is, therefore, the mere representative of his assignor, enjoying his rights only, and is bound where he would be bound: Wright et al. v. Wigton, 3 Norris 163.

The contention here is to be considered solely as between Henry G. Morris, assignor, of the one part, and the appellees of the other part. No rights of subsequent purchasers or of creditors are involved. The main question is, whether the parties to the mortgage, at the time of its execution, intended it to cover the property now in controversy. The master found they did so intend. The court, with slight modification, confirmed the finding and decreed accordingly. Although numerous errors have been assigned, they all relate to this one. The court below having agreed with the master as to the facts, their conclusion should not be reversed unless error therein is reasonably apparent.

When not restrained by any technical rule of law, a court should so interpret a contract as to give effect to the true intention and understanding of the parties when it wras executed. ' While parol evidence may not, as a general rule, be received to contradict or vary the written terms in which the contract was expressed, yet such evidence of the existing and surrounding circumstances may be given to aid in ascertaining the true intent of the parties; Hence it may be admitted to explain a written agreement, so far as to give identity to the subject-matter and apply the contract to it: Bertsch v. Lehigh Coal & Nav. Co., 4 Rawle 130; Barnhart v. Riddle, 5 Casey 92; Jackson v. Litch, 12 P. F. Smith 451.

The relative rights of the parties in the present case to the property in controvery, arose under the following general circumstances: -The appellees were the owners and occupiers of a large manufacturing establishment called “ Southwark Foundry,” in the city of Philadelphia. In fact it was an extensive engine manufactory, covering a whole square of ground, with large and substantial buildings, including a machine shop, brass and iron foundry, boiler shop, smith shop, pattern shop, carpenter shop, drawing room and erecting shop, with the requisite machinery, tools and appliances for carrying on these various but connected branches of business. By written agreement, dated the 31st October 1870, they declared that Henry G. Morris had purchased from them all said property and business, and they agreed to convey the same to him on the 31st December next following by good and lawful deeds, assignments and transfers ; and also a certain stable and other lot of ground, in the contract described, for the sum of $480,000. Morris also agreeing to purchase the stock and materials which the appellees might have on hand, on said 31st December, at a valuation to be ascertained. That on the delivery of the deeds and transfers he should pay $40,000, and the remaining $440,000 in ten annual instalments, with interest, the payment thereof to be secured by “ a purchase-money mortgage of all the real estate above mentioned, with the fixtures and appurtenances.” On the day designated therefor the deeds, transfers and mortgage were duly executed and delivered. The mortgage describes the lands as they are described in the deeds “ together with the buildings and improvements thereon, with all the machinery, engines, boilers, railroad tracks and fixtures contained in or appurtenant to the premises.”

Inasmuch, however, as a written instrument or bill of sale was also executed by the appellees, transferring to Morris some of the articles now in contention, it is claimed that the mortgage was not intended to cover them. The correctness of this view depends on what did the parties understand to be fixtures ? Physical annexation to realty is not necessary to convert a chattel into a fixture. Whether it bo such depends much on the business for which the premises are used. Articles necessary or convenient in the transaction of one kind of business, would be useless in another. If the article, whether fast or loose, be indispensable in carrying on the specific business, it becomes a part of the realty : Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, Id. 390; Ege v. Kille, 3 Norris 333.

It is shown that the property in question, except some few articles that Morris afterwards added, was used by the appellees in carrying on the business in which they were engaged. They considered the several items necessary for that purpose. They agreed to sell, and Morris agreed to buy, at the same time and by the same instrument, the premises and business in which the articles were used,-with the articles themselves. As the appellees had used, and appropriated, and treated as fixtures, as a necessary part of their extensive manufacturing establishment, so they sold it, and so Morris bought it. It was sold as a whole and bought as a whole. The gross sum of $480,000 was the consideration for the whole. The fact that when the papers were subsequently executed, the consideration was divided and part put in the deed and part in the bill of sale, cannot change the character of the sale. Whatever had ■received the impress of a fixture could not by this act be so dissevered as to prevent the lien of the mortgage from attaching thereto. Whatever Morris afterwards added as necessary to the business and used as such, in like manner became fixtures, and were equally bound by the mortgage.

' It is manifest that although the property sold, as well as the property mortgaged, was composed of various parts, yet those parts were united in their operations, and were intended to be used, and were actually used, in effecting one general purpose. The “ purchase-money mortgage” to secure the' unpaid portion of the purchase-money, was intended to cover all the property purchased in connection with the premises. As the rights of no third persons have intervened, there is’no legal impediment in the way of giving full effect to the contract, and we thereby prevent the true intent of the parties thereto from being thwarted. The learned judge committed no error in enjoining against the removal.

Decree affirmed, and appeal dismissed at the costs of thé appellant.

Justices Trunkey and Sterrett dissented.