Alden v. Mayfield

This appeal grows out of a second trial of this action. In the former trial, as in the second, the defendant prevailed, and an appeal was taken by the plaintiff to the supreme court from the judgment and the order denying him a new trial. The judgment and the order were reversed (Alden v. Mayfield, 163 Cal. 793 , [Ann. Cas. 1914A, 258, 41 L. R. A. (N. S.) 1022 , 127 Pac. 44 ]), and the nature of the action and the issues as presented and tried at the former trial are stated in the opinion in that case as follows:

“Plaintiff sued to recover damages for injury to her freehold, and for an injunction to restrain threatened future damages. The specific charge of damages was that the defendant ‘between midnight of the twenty-eighth day of May and daylight of the twenty-eighth day of May, wrongfully and unlawfully cut down, tore out, and removed the heavy plate glass and stone front of a brick building belonging to plaintiff and replaced the same with a cheap temporary structure with great damage to said property and the said plaintiff in the sum of $1,000.’ Defendant admitted the taking down and removal of the plate glass and the marble stone front, but alleged that while tenant of the building he placed the plate glass and marble in the building • that the windows and marble were owned by him ‘and were placed there by him for the purpose of trade, ornament, and convenience only, and were trade fixtures and not an integral part of the said store or premises, and could be and were removed without any injury to the premises. ’ The court found in accordance with this averment of the answer. It further found that defendant threatened to remove fixtures which were part of the freehold, and as a conclusion of law declared that plaintiff was entitled to an injunction restraining defendant from injuring the freehold; but by its judgment withheld the injunction and gave judgment for defendant for costs.”

In the opinion, it is said: “It is to be noted that the answer does not base the right of removal upon any agreement between the landlord and tenant, and the court does not find

Upon the return of the cause to the court below for retrial, the defendant applied for and, over objection by the plaintiff, was granted leave to amend his answer by pleading an express oral agreement between him and the plaintiff, whereby it was stipulated and agreed that the defendant should put in the plate glass and the marble base in the front of the building at his own expense and that, upon quitting the premises, he might remove the same upon the condition that he would not injure the building, and would place the portion from which the glass and the marble were removed in equally as good condition as when the change indicated was made.

The court, as a result of the last trial, found that the agreement for the removal of the plate glass and the marble base, as pleaded in the amended answer, had been entered into between the parties. Conclusions of law were made and filed in accordance with the findings, and judgment thereupon entered against the plaintiff and in favor of the defendant for costs.

These appeals by the plaintiff are from the judgment and the order denying her a new trial.

In addition to the finding that an agreement was made authorizing the defendant, upon ceasing to occupy the building, to remove the plate glass and marble slabs from the front of the building, the court, as a result of the second trial, made the following findings, which appear to derive from the evidence sufficient support:

“It was stipulated by plaintiff and defendant, and is hereby found as a fact, that all the shelving, fixtures, and such appliances attached to and connected with the store and all staging, electric-light wiring, and gas-fittings, were, and are, the property of plaintiff, and that they could not be removed by defendant; the court finds that defendant has not threatened nor intended to, and will not, unless restrained by this court, or at all, cut out, tear down, or remove any of the shelving, fixtures, or appurtenances last hereinabove described, but has removed only such fixtures, as aforesaid, as by stipulation and agreement, he could remove”; that “it was further stipulated by plaintiff and defendant and now is found as a fact that the following articles were, and are, the property of the defendant, and might be removed by him: three glass hateases, four glass showcases on the side, two center glass showcases, six glass sectional suit cabinets or cases, one counter, one running ladder, one stove, one cash register, one safe, two mirrors, and all other articles not attached to the building.”

The decision of these questions obviously depends upon the further proposition whether the evidence supports the findings that the agreement was made, that, in removing the glass and marble, the building was not injured or damaged, and that the front portion thereof, after the removal, was placed and left in as good condition as it was in before the new show-window was installed by the defendant.

It is proper to observe that the evidence disclosing the nature of the improvements which, under the agreement, were to be removed by the defendant, and their effect upon the building when installed, and the effect of their removal upon the building—that is, whether they were so attached'thereto as that their removal would of itself impair or weaken the building—is, we judge from the opinion of the supreme court, entirely different from that which thus appears to have been shown by the record supporting the former appeal. For instance, the evidence, as it was incorporated into the record upon which the former appeal was submitted, apparently justified the conclusion-that “the plate-glass windows and the marble formed the front of the store occupied by the defendant,” that “their removal necessarily, and against any evidence to the contrary, was the removal not of a fixture but of a portion of the building itself—the very front of the store,” and that “by such removal the building itself ceased to be an inclosure and was open to intruders and the elements.” (Alden v. Mayfield, 163 Cal. 793 , 795, [Ann. Cas. 1914A, 258, 41 L. R. A. (N. S.) 1022 , 127 Pac. 44 ].) At the trial from which the present appeals arise it is made to appear from

The plaintiff testified that, when the plate glass and marble slabs were removed, the building was not thereby left open or exposed to the elements; that the whole front remained, and that “there were partitions, the windows still remained there, and the only way anyone could enter would be entering through the door.” In this statement the plaintiff was corroborated by Lund.

In brief, and recapitulatory of the testimony of the plaintiff and Lund, the marble was used as a base for the support of the plate glass, and the latter was itself nowhere attached to the building, but was slipped into the cleats which had been fastened to the molding, so that it could be and was, as we have seen and shall later further see, removed from the cleats

As to the agreement for the removal of the plate glass and the marble, the testimony shows: That the plaintiff’s son, Richard C. Haile (deceased at the time of the second trial), had the management and control of the building as the plaintiff’s agent. He, in other words, was authorized by the plaintiff to attend to the renting of it, to make agreements and leases to that end, and to make such arrangements with tenants or persons employing the use of the building as might be necessary or required for the convenient use of the building for the purposes for which it might be let out. When the defendant leased the building the negotiations for that purpose were carried on with Haile. The defendant testified that he spoke to the plaintiff about making some changes and improvements in the store, and that she referred him to Haile, saying her son “had charge of it and whatever I did to do with him.” The defendant then called on Haile, and the two entered into an agreement by which a number of improvements in the interior of the store were to be made, the defendant to pay for the same, and to withhold from the rent in reimbursement' for the expenditure so made the sum of ten dollars each month until the total sum so expended—amounting in the aggregate to $175—was repaid. Subsequently, the defendant again went to Haile and asked him to install the heavy plate glass and the marble base in the place of the front show-window as it then stood. Haile refused to pay for the improvement so

The court found that the removal of the plate glass and marble was by the defendant, on the twenty-eighth day of May, 1910, “effected and made without any damage whatsoever to said premises or said freehold or said building; that neither said glass nor said marble had by the manner in which they or either of them was affixed, or otherwise, become an integral part of the premises or freehold or building nor were said glass and marble an integral part thereof; that said glass and marble were affixed to said building by means of lag screws.”

Testimony showing how the glass and marble were attached to the building has already been referred to herein, and, as further supporting the above finding, testimony disclosing the following additional facts should be considered: That there were only four slabs of marble and as many pieces of plate glass removed, leaving the remainder of the front intact; that neither the plate glass nor marble was used for or acted as a support for the store above or any part of the building; that, as a matter of fact, “the plates would surely break if there was any weight on them”; that it required only thirty or forty minutes to remove them, and that immediately upon their removal they were replaced with plain glass and a wooden base even superior in quality to those in the front of the building before the plate glass and the marble were substituted therefor; that, in removing them, it was only necessary to slip the plate from the cleats by which they were held and to remove the screws securing the marble base; that, by their removal, the brick or other materials of which the building was constructed were not disturbed or damaged in any degree, and that the building itself remained as stable and strong as it ever was.

The testimony addressed to the vital issues involved in the controversy, as they were formally tendered and accepted at the later trial thereof, has now'been briefly summarized, and from the testimony as so presented it is plainly manifest that as the case was presented at the second trial thereof, and as it

And it seems to us that, from the testimony, of which the above is a conspectus, the conclusion is irresistible that, upon the theory upon which the cause was last presented and tried, there is, as before in effect declared, ample justification for the trial court’s deductions therefrom, as evidenced by its findings, viz.: That the plate glass and the marble slabs removed by the defendant were attached to the building at his own expense and that they were his property; 2. That they were not so affixed to the premises as to constitute them integral parts thereof, but were attached thereto in such manner “as to justify his removal of them”—that is to say, in such manner as that they could be removed without injury or damage to the freehold or the building to which they were directly attached; 3. That they were removed without producing any injury or damage to the freehold or the building; and, 4. That the building upon such removal was put by the defendant in as good, if not a better, condition in that respect than it was in prior to and at the time of the installation of the plate glass and the marble front or show-window.

It results, of course, that the findings, being sufficiently sustained by the proofs, afford full support to the judgment.

The claim that the court should have granted the preliminary or other preventive relief asked for by the plaintiff is of little importance, even if, under the allegations of the complaint, the plaintiff was preliminarily entitled to such ancillary aid. The complaint, in furtherance of its plea for an injunction, alleged that the defendant had threatened and was

Of course, it will not be claimed that the prayer for an injunction was aimed at interference with or the removal of the plate glass and marble slabs, since the evidence shows, and, indeed, the complaint alleges, that those articles had already been removed when this action was instituted, and since, as clearly appears from the complaint, the injunctive relief asked for was solely and exclusively prohibitive, and not mandatory in its nature.

We do not think, as the plaintiff contends, that the court abused its discretion in allowing the defendant to amend his answer in the particular and manner indicated in the outset of this opinion. It is evident that, from the very inception of this action, particularly from the time of the filing of the answer, the theory of the defendant was that, having himself and at his own expense put in the plate glass and the marble slabs, they constituted his property, and that he would legally be entitled and authorized to remove them upon the termination of his term as lessee of the premises. But it transpired,

We have examined in detail and with much care the rulings by which, so it is claimed, improper testimony was permitted to enter the record, and have found in none of them any just ground for holding that, even if technically erroneous, they, in any measure, affected the substantial rights of the plaintiff at the trial of the ease.

The judgment and the order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 13, 1917.