State Banking & Tr. Co. v. Henry Martin Brick Mach. Mfg. Co.

This proceeding in error presents questions as to fixtures and conditional sales. The Eggers Brick Co. purchased from the Henry Martin Brick Machine Manufacturing Co. a dryer and other extensive appliances for the making of bricks, by written contract, wherein the title, until payment made, was *476reserved in the vendor. After these appliances were erected on the Eggers Brick Co.’s premises the land was sold, on foreclosure sale, to the State Banking & Trust Co., plaintiff in error here, which had notice, however, of the Martin Brick Machine Manufacturing Co’s claim of title to said appliances. The action below was a replevin proceeding, in which the Martin Brick Manufacturing Co. recovered a verdict and judgment, but the appliances sought to be replevied were retaken by the Eggers Brick Co., under redelivery bond, and the same are claimed by the bank, upon the theory that they were fixtures as between it and the Eggers Brick Co.; and also, because recourse to the redelivery bond is now the machine brick manufacturing company’s sole reliance it, too is without a claim upon the physical property.

As against the bank, the trustee in bankruptcy of the Eggers Brick Co. contends that the dryer, etc., are not fixtures but severable chattels which did not pass with the realty.

As against the machine manufacturing company, the trustee in bankruptcy contends that the contract of conditional sale is invalid under Sec. 4155-2 R. S. (Sec. 8568 G-. C. et seq.), not being evidenced by writing signed by the purchaser, and because the vendor being expressly excluded from the operation of Sec. 4155-3 R. S. (Sec. 8570 G-. C.), it is remitted to its common law rights and hence has no right to the possession of the machinery delivered by it until it returns, or offers to return, that part of the purchase price already received by it.

Taking up the last claim first, we hold, upon the authority of Sheehan v. Davis, 17 Ohio St. 571, that the contract in question was executed in a manner binding upon the Eggers Brick Co. when it was signed by and in the name of its manager, thereunto lawfully authorized, notwithstanding that the name of the corporation 'is not signed thereto, for it appears from the body of the instrument that the Eggers Brick Co. was the real contracting party.

It is true that the word sign and execute are not technically convertible terms, but it was held in Tiernan v. Fenimore, 17 Ohio, 545, that they are, in common parlance, used interchangeably. We interpret the word “signed” in Sec. (4155-2) in the broader sense.

*477As regards the right of the brick machine manufacturing company to maintain replevin for the dryer, etc., in pursuance of its retained title and for breach of the Eggers Brick Company’s agreement to pay, as stipulated, it is not true at the common law, as we understand it, that a tender back must be of such portion of the purchase money as had already been paid. The authorities cited on behalf of the trustee in bankruptcy do not apply when the vendor’s title is expressly retained until payment completed. Whatever right the vendee may have to a return of the money so paid can not be asserted in defense of the vendor’s right to retake possession of the goods. The vendee, in such case, has no property in the goods themselves Sage v. Sleutz, 23 Ohio St. 1; National Cash Register Co. v. Cervone, 76 Ohio St. 12, 20 [80 N. E. 1033]. In the latter case, Spear, J., pronouncing the opinion of the court says:

“Prior to the passage of the conditional sales statutes of May 4, 1885 (82 O. L. 238), the title to property so conditionally sold remained absolutely in the vendor until the purchase price should be fully paid, and he might retake the property, if any part of the purchase money remained due and unpaid, either from the purchaser or any person having possession of it.”

It is thus apparent that the absence of a covenant to that effect from the conditional sale contract in the case before us is quite immaterial.

All the remaining questions in this casé will have been fully disposed of, if we should find that the dryer, etc., were not so annexed to the realty as to become a part of it, and in this behalf we hold with the court below, on the authority of Case Mfg. Co. v. Garven, 45 Ohio St. 289 [13 N. E. 493]. In view of the very full discussion of the law of fixtures in the various reported decisions of the Supreme Court of this state, we deem it unprofitable to enter into an extended discussion of that subject here. Suffice it to say that our re-examination of these authorities, as applied to the facts of this case, satisfy us that there is no error in the record, and hence the judgment below is affirmed.