Opinion
No. A 62617.
1946-08-31
SILVERBERG et al. v. KRAMER et al.
Gobozy & Weiss, of Cleveland, for plaintiffs. Mooney, Hahn, Loeser, Keough & Freedheim, of Cleveland (Henry I. Katz, of Cleveland, of counsel), for defendants.
Action by Alex Silverberg and another against Max S. Kramer and another to recover the value of appurtenances missing and damaged by defendants who sold their house to plaintiffs, and to recover the rental value of the premises for a designated period.
Judgment for plaintiffs in accordance with opinion.Gobozy & Weiss, of Cleveland, for plaintiffs. Mooney, Hahn, Loeser, Keough & Freedheim, of Cleveland (Henry I. Katz, of Cleveland, of counsel), for defendants.
DRUCKER, Judge.
In their amended petition, the plaintiffs allege a written agreement with the defendants under the terms of which the plaintiffs agreed to purchase a single brick home, which included a two car garage, together with appurtenances belonging thereto and including screens, storm doors and windows, window shades, light, plumbing and heating fixtures.
The plaintiffs allege further that they took possession on or about July 20, 1945, and then for the first time discovered that the defendants had willfully, maliciously and intentionally caused damage to the interior of said property and had removed fixtures and appurtenances, storm doors and windows, sash, a heater, fluorescent light, a medicine cabinet, bathroom accessories, door chimes, curtain rods, a mirror, a garden trellis, window shades, and screens.
Plaintiffs contend that the total value of the above appurtenances missing and damages is in the sum of $1,188.
For the second cause of action the plaintiffs allege that according to the terms and provisions of the agreement they were to be given possession of the said premises by the defendants on or before June 15, 1945, but that notwithstanding said agreement, the possession was not granted until July 20, 1945, and that the reasonable rental value of said premises during said period was in the sum of $150. There is, therefore, due on the second cause of action the plaintiff from the defendant the sum of $150.
The defendants contend that the agreement contained no stipulation as to the dates when the purchase money and the deed were to be placed in the hands of the escrow agent. The defendants vacated the premises on June 17, 1945.
The defendants in their answer contend that the agreement contained no provisions, expressed or implied, which prohibited the defendants from removing the articles which they in fact did remove and take away. The defendants further contended that the specific items alleged in the plaintiff's petition as appurtenances and fixtures never existed as a part of the premises and deny that any damage was caused by the defendants willfully, maliciously or intentionally, and contended further that these appurtenances and fixtures were not on the premises at the time the agreement was concluded.
To the second cause of action of the plaintiffs, the defendants answer that the delay in taking possession of the premises by the plaintiffs was caused solely by the plaintiffs and that if there had been any delay on the part of the defendants the delay was excused, waived and acquiesced in by the plaintiffs.
The court cannot read into the contract the intentions of the parties when they are clearly set forth in a signed contract which leaves no room for doubt as to that intent. Parol evidence to the contrary is inadmissible. As stated in Tuttle v. Burgett's Adm'r, 53 Ohio St. 498, 42 N.E. 427,30 L.R.A. 214, 53 Am.St.Rep. 649, ‘The oral declarations of a party to a written instrument, made before or at the time of its execution, of an intention or purpose not therein expressed, or different from that to be derived from its terms, are not within the rule which permits extrinsic evidence of the situation of the parties and of the surrounding circumstances when the instrument was executed, and are inadmissible in an action on the instrument where its reformation is not sought.’
The evidence was uncontradicted that there were storm doors and storm windows. It is conceded that a radiant heater had been removed, as well as a fluorescent light fixture, metal screen radiator covers, a large etched plate glass mirror, towel rods and other bathroom accessories. The large door chimes had been replaced by small ones. Inlaid linoleum on the third floor was gone. The garden trellis was taken and some sockets in the walls were torn out and some window shades were damaged. A medicine cabinet had been removed from the third floor bathroom.
I. The testimony showed that some of the storm doors, storm sash and storm windows were in position on the house and the balance had been kept in the garage. The court believes that the storm doors and windows and sash should pass with the purchase. Not only were they particularly and specifically mentioned in the contract, but the great weight of available authority seems to indicate that storm doors, windows and sash should be considered real property. We believe that the test as laid down in Teaff v. Hewitt, 1 Ohio St. 511,59 Am.Dec. 634, is applicable: ‘Their nature makes them adaptable to the use or purpose of that part of the realty with which it is connected. Ordinarily these items are not interchangeable for they fit a particular dimension which is not standardized. These doors and windows were a part of the personality of the house and the greatest stretch of the imagination could not envision the buying of them with the idea of future inter-change-ability.’
The obvious intent of the parties to purchase the storm doors and windows must also be considered. Teaff v. Hewitt, 1 Ohio St. 511,59 Am.Dec. 634, sets up three tests of annexation: ‘1. Actual annexation to realty or appurtenant. 2. Adaptation to use or purpose of that part of the realty with which it is connected. 3. Intention to make permanent accession to free-hold.’
The test as such in item 3 of that opinion has been the test applied in a great number of cases where the courts have attempted to distinguish realty and personalty. Though they were kept in the garage and though not paid for, they were still available and were to be set in designated places. They were to be used in connection with the realty and it is quite clear that it was the definite intention of the owners of the house that they should be considered part of the realty.
II. A fluorescent light fixture was missing when the plaintiffs made a tour of inspection after taking possession. We have some authority which speaks of chandelier and other lighting fixtures as personal property. But for the fact that the ‘lighting generally’ was made an element of the contract our view must be modified. The purchaser of a house which contains the usual ordinary lighting fixtures may reasonably believe that the word lighting in the contract would include what was in the house at the time of his inspection before the purchase and need not be reserved for him by the use of specific language. The court does not have to consider the item as specifically mentioned in the contract but must take into consideration the nature and use in the determination as to whether or not lighting as such can be considered fixtures.
At this point it might be well to consider the necessity of modifying our views and realize that the problem which faced the judges and the courts in former years is now different. This is not an essay on ‘flux’ nor an economic or sociological review, but it must be kept in mind that the law must take cognizance of the changing world where we have made rapid strides in our industrial and scientific inventions. The courts cannot be unmindful of the changes of economic patterns and modes of living and group mores. Tidal waves of profound significance have seriously affected the habits and patterns of our lives. War accelerated and produced stirring changes in our habits. The common law recognized the home as a castle not merely because of the inherent right of the owner to defend it with his life, but because it represented the permanency of an abode, the estate of a family, the inheritance of children. It was bought with a view of establishing permanent residence. We cannot be unmindful of the serious change which has effected the lives of people in the large metropolitan areas and even in the rural districts. We have now in every community large migrant populations. Laborers have been urged to come into communitites to accept temporary jobs with good wages. Many have left their homes and their communities to seek better standards of living because of the increased economic opportunities in manufacturing and industrial centers. Their migratory invasions were not motivated by the desire to find permanent and established homes. They sought temporary housing and were content with congested or flimsy quarters during the pendency of their employment. Congress recognized the need for passing legislation to prevent inflation in real estate. Housing is one of the acute problems of the United States. Veterans returning from the war found themselves faced with the difficulties of obtaining proper and adequate housing. War needs and war necessities interfered with the natural economic response to supply and demand and for years now we have been faced with a dearth of housing units. It is this economic situation which must affect our views in determining what must be recognized as fixtures and the application of the test of the intention to permanently attach fixtures so that they may become part of the realty. This era of migration, this economic upheaval, this acute housing shortage, this sociological change in the attitude of people towards their homes, this shifting of population from the rural to the crowded urban life, this breaking down of neighborhood mores and the overwhelming demand for housing which is not available, seriously effects what ought to be the logical views of the court without straining at the legal leash of precedent and historic legal definitions.
These conditions lead us to the conclusion that the attitude of the average home purchaser is different. Industrial inventions and the motivation to give greater comfort and convenience as affected the intention of the owner of a home to attach fixtures to the realty. The gadgets, the more modern articles, the new comforts and conveniences for his home are articles for his greater personal enjoyment and purchased and used and attached for temporary use in this temporary shelter which he hopes and expects to take with him as he moves from door to door. Many home owners who have bought homes to find adequate temporary shelter are yielding to the pressure and temptation to sell for greater profit and added gain because of the irresistible demand on the part of the purchaser for available lodging.
With this discussion as a background, the court feels it advisable and in perfect harmony with a modern legal interpretation to draw a sharper line of distinction between that which is absolutely necessary to the enjoyment of a property and that which has been attached for the temporary use and satisfaction of the individual home owner. What may be useful and ornamental and comfortable to another person may not appeal to the purchaser and we must be guided in our consideration on the question of the actual usability to the buyer of a property without the attachments, fixtures, or appurtenances. This discussion is pertinent because the court has taken these circumstances into consideration in aiding in the determination of what had been the intention of the parties when the appurtenances or personal property was annexed to the realty.
III. There was no mention of a radiant heater in the contract. There was considerable dispute as to the existence at the time of the purchase. The court concludes, however, that there had been a radiant heater in the house which had been detached and removed. The weight of authority in Ohio seems to indicate that such items cannot be considered real property. When the parties intendthat personal property should pass with the sale of the real estate, it is necessary that it be noted and indicated in the contract. There is considerable authority for the theory that:
‘Items attached by a coupling to a gas line or an electric wire are personal property, and do not become a part of the realty. This item is analogous to a gas range where it has been held ‘when installed in a dwelling and connected with a supply pipe, does not thereby become a fixture,’ Hook v. Bolton, 199 Mass. 244, 85 N.E. 175, 17 L.R.A.,N.S., 699, 127 Am.St.Rep. 487;Cosgrove v. Troescher, 62 App.Div. 123, 70 N.Y.S. 764;Vaughen v. Haldeman, 33 Pa. 522, 75 Am.Dec. 622, and/or to electric ranges where it was held in Gas & Electric Shop v. Corey-Scheffel Lumber Co., 227 Ky. 657, 13 S.W.2d 1009, 62 A.L.R. 208, ‘that an electric range installed in a residence by the owner thereof * * * may be removed without substantial damages to the free-hold, though attached to the building by means of screws, etc., * * * does not become a part of the realty.’ In McKeage v. Hanover Fire Insurance Co., 81 N.Y. 38, 37 Am.Rep. 471, it was held ‘Gas fixtures, which are simply screwed onto the gas pipes of a building and can be detached by unscrewing them * * * form no part of the realty.’'
IV. It was admitted that there were metal screen radiator covers which were over and above certain radiators. Three of these were missing. The evidence was to the effect that they were not specially manufactured nor measured nor designed for the radiators in this home. In fact, the evidence was to the effect that they had been bought as used radiator covers. The radiator covers, because of the weight, necessarily depended upon the specific gravity for their more rigid placement and it is questionable as to whether or not they required the implementation of a screw device to affix them more rigidly and firmly to the floor. Even conceding that that may have been the case we conclude in view of our discussion that the metal screen radiator covers are not such fixtures that go with the realty. The fact that they are heavy metallic household appliances cannot govern the determination of their nature nor be indicative of an intention of the parties to make them part of the realty, since no mention was made of them in the contract. We believe that these are to be considered personalty not fixtures and do not pass with the realty.
V. The question of the mirrors as fixtures had caused considerable discussion in the determination as to whether they are fixtures which pass with the realty or personalty. Mirrors are ornamental as well as useful. In many instances they have been considered architectural aids and frequently have been built into the wall as a structural part of the house. In other instances they are attached to the walls giving fullsome expression to the personal vanity of the user and have on other occasions been placed on a wall covering a specific portion of the otherwise wall surface. There are some who regard mirrors as necessary in giving a room architectural perspective and aesthetic detail. Mirrors are regarded as the necessary concomitant of a household use.
‘Neither use was absolutely necessary to the comfort of some future buyer. In McKeage v. Hanover Fire Insurance Co., 81 N.Y. 38, 37 Am.Rep. 471, it was held, ‘mirrors which are not set into the walls, but are put up after the completion of the building being supported by hooks or other supports driven in or attached to the walls * * * form no part of the realty, they are simply chattels, not appertaining to the building; and so, do not pass by deed or under mortgage of the premises.’ Also it was held in Speyer's, Will, Sur., 35 N.Y.S.2d 705, 709, ‘The words ‘household furniture’ connote all movable chattels added to the interior of a house for the enjoyment therewith by the householder, even though attached to the realty by screws, nails, or brackets.' and in the same case ‘articles in question were attached to the realty in a fashion manifestly calculated to permit their safe removal whenever desired, without material injury to the building.’'
Some contention was raised by the plaintiffs that after the mirrors were removed there was a difference in the appearance of the wall as the color of the paint was different than that of the rest of the room. This is necessarily true when mirrors or other objects remain for sometime and are then removed. We do not regard this, however, as such a fundamental change as to necessitate repainting or reconstruction of the wall. This nor the necessity of using small screws to hold the mirrors securely in place do not make mirrors part of the realty.
VI. Bathroom accessories and curtain rods cannot be considered as realty which the sellor of a home cannot remove and take with him. It is quite reasonable to believe that even though that may not be easily procurable because of war conditions and market difficulties, nevertheless the owner of a house foreseeing the need for this particular type of a commodity purchases them and installs them with the intention of removing them when he finds it necessary to sell his house and move into other quarters. The modern curtain rods, the inexpensive material, and manner in which they are made makes them easily adjustable and within the economic purchasing ability of great numbers of people and can be adjusted and fit and used for windows of different sizes. We cannot logically conclude, therefore, that these curtain rods and bathroom accessories should have been purchased by the former owner with the intention of making them fixtures or permanently annexed to the realty.
VII. Chimes instead of bells or knockers, are part of a modern comfort and convenience introduced for the delight of a household. There is still a question of personal preference and taste. The entrance of a house and the availability of that home is not too seriously effected by the absence of chimes. It is admitted that there was a large set of doors chimes at the time of the purchaser's inspection of the home. The defendants saw fit to take these large chimes with them and leave and replace them with an inexpensive substitute. Suppose they had taken with them some ancient fancy door bell which had some value because of its design, could the plaintiffs complain that a fixture had been removed? Raymond v. Strickland, 124 Ga. 504, 52 S.E. 619, 3 L.R.A.,N.S., 69.
VIII. Inlaid linoleum had been removed from the floor in one of the rooms on the third floor. The evidence seems to indicate that this was a floor covering of temporary nature and not so much inlaid as to be stuck to the floor due to the reaction of heat on the composition of which the linoleum was made. There was no evidence that it was specially cut to fit this particular room. It did improve the appearance of the room while it was in use. Linoleum made under the modern improved methods and procedures can be treated as rugs which can fit into other rooms depending upon its size. Its use, its design, and its color is a matter of personal taste, and it has not as yet been regarded as necessary. It was kept by the defendants in such a condition that it could be removed without damage to the property and it was purchased for use, without any intention to permanently annex it to the home.
IX. The garden trellis was in the garage when the plaintiffs inspected the house as a prospective purchase. It was made of light wood and could easily be moved about. There was no evidence to indicate that it had been seen by the prospective purchaser in the garden or in the garage. It may be used by an owner frequently when he takes personal pride in his garden or in the growth of special vegetables or flowers. It could be used in any other garden and certainly cannot, merely because it must be placed firmly into the ground during its use, be determined to be a fixture. We find that there was no damage to the plaintiffs by the defendants for removing the trellis and taking it with them as personal property.
X. A medicine cabinet had been removed from the third floor. It was the usual type which has to be fastened into the wall with a screw to keep it firmly and could be removed without seriously defacing the wall. It was not mentioned in the contract and there was no evidence of an intention to permanently affix this personal property and make it part of the realty.
From the evidence, the court believes that the defendants can be charged with damaging the window shades and the sockets and plates in the walls. There was evidence to indicate that the sockets had been torn from the walls and that the window shades were not in the same condition as observed by the plaintiffs at the time of purchase and were included in the contract, and the court must conclude that such damage had been perpetrated by the defendants.
The second cause of action for the reasonable value of the premises for the period between June 15, 1945 and July 20, 1945, must be determined on the basis of the conclusion that there had been a breach of contract affecting the possession and use of the premises by the plaintiffs. The court finds that the defendants were wrongfully in possession of the premises for 35 days, after June 15, 1945. The court finds, therefore, that the defendants are liable for the occupation and use of the property for that period in the amount of $125.
The court finds there is due the plaintiffs from the defendants on the first cause of action, for the two storm doors, the forty-six storm windows, storm sashes and screens, damage to ten plugs, box plates and sockets, the eighteen shades and two fluorescent lights, the sum of $830.25 with $125 on the second cause of action, making a total of $955.25, for which the plaintiffs get judgment.