Appeal, No. 189, Oct. T., 1956, from judgment of Court of Common Pleas of Montgomery County, April T., 1954, No. 128, in case of Royal Store Fixture Co. v. William H. Patten et ux. Judgment affirmed.
R. W. Tredinnick, with him Frederick B. Smillie, and Smillie, Bean, Davis & Tredinnick, for appellants.
Harry M. Sablosky, with him Maxwell Strawbridge, and Fox, Rothschild, O'Brien & Frankel, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 183 Pa. Super. Page 251]
This is an appeal from an order of the lower court dismissing defendants' motions for a new trial and for judgment n.o.v. in an action of replevin without bond brought by the plaintiff, Royal Store Fixture Co. to recover possession of a frozen custard stand and walk-in cooler situated upon the land of the defendants. The case was tried before a jury which returned a verdict for the plaintiff.
On April 13, 1953, plaintiff sold, under a conditional sale agreement, the frozen custard stand, walk-in cooler, and machinery and equipment for use therein to one Zaroff, who had leased the land upon which the property in question is now situate, from the defendants under a five year lease dated March 2, 1953. Plaintiff also on April 13, secured from the defendant William Patten a "landlord's waiver" which, after setting forth a description of the property sold to Zaroff under the conditional sale agreement provided, inter alia, that "the aforesaid equipment shall be exempt from distress for rent as long as the title thereto remains in the Royal Store Fixture Co." Defendants inserted a clause in the waiver agreement providing that the waiver should "in no other way affect the agreement dated March 1, 1953," (March 2).
[ 183 Pa. Super. Page 252]
On April 18, the conditional sale agreement was recorded in the Prothonotary's office of Montgomery County. On April 26, the frozen custard stand was placed and assembled on defendants' land upon foundations provided by defendants' leasee, Zaroff. The building was connected to water and electric lines, and to a cesspool. From the evidence the jury could have found that the building was in no other way affixed to the foundations or to the land.
On August 26, 1953, Zaroff defaulted in his payments under the conditional sale contract, and on October 1 he defaulted in the payment of rent under the lease. On October 3 defendants mailed plaintiff a letter claiming title to the frozen custard stand and walk-in cooler under clause #3 in the lease which provided that the building should become the property of the leasor upon any default in the lease agreement by the leasee.
Appellants contend that this building is real estate as a matter of law and that title is, therefore, in them as owners of the real estate and that, in addition, they are entitled to the building by virtue of clause #3 in the lease.
In the frequently quoted case of Clayton v. Lienhard, 312 Pa. 433, 436-7, 167 A. 321 (1933) it was said: "Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty: (citing). Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; ...