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Mr. White, by warranty deed, conveyed the are, by the weight of authority, perhaps to premises to the defendants. The deed, be considered as still personalty, though when first drawn, included the building the contrary has quite frequently been dematerial on the premises, for which this cided.' 13 Am. & Eng. Enc. Law, 2d ed. suit was brought; but, at the request of pp. 601, 602, and cases there cited. It seems the defendants, it was stricken out of the to me that it cannot be said that this iron deed, and a separate bill of sale was given and stone formed or constituted a necesfor it. Defendants moved the material out sary accessory to the enjoyment of the land, of the way, and proceeded to put up a busi- which seems to be the rule laid down by ness building on the premises, using there- some of the courts as the true test where in a small portion of the material involved annexation had not actually taken place. in this suit, and disposing of the rest. Much of the iron in question never went Samuel E. Byrne executed a bill of sale of into the building since erected by the dethe said building material to the plaintiff fendants, but was exchanged for that more May, 20, 1896. The plaintiff brought an modern and suitable. The old rule seems action of trover for this building material, to have been that there must be physical and recovered judgment. A motion for a annexation, but under some circumstances new trial was made, which was overruled. that rule has been relaxed where the article The case is brought here by writ of error. is shown to be a necessary accessory to the enjoyment of the land. The fact that a place was prepared in which to put an article does not necessarily make the article part of the realty. 1d. pp. 608, 610. Notwithstanding the language of our supreme court in the case of Curtis v. Leasia, 78 Mich., at page 483, 44 N. W. 500, I understand that in a case like the one under consideration the question may be said to be an open one in this state.

In overruling the motion for a new trial the circuit judge filed a written statement, which states so admirably the questions involved that we produce it here:

"(1) The first reason assigned for the motion is that the court erred in refusing to charge the jury as requested by defendants' counsel in the first request. This request related to the subject of fixtures, and was to the effect that the property which was the subject-matter of this suit passed by virtue of the deed from Samuel E. Byrne, Sr., to Thurber. This deed was in the usual form of a deed of lands. There was evidence tending to show that it was intended by the parties thereto to be a mortgage. But as the rule, when applied to mortgages, is no more favorable to the plaintiff than when applied to a deed, it is not very material here. I refused this request at the trial upon a somewhat hasty examination of such authorities as were at hand. A more careful examination of the authorities has confirmed my position at the trial. The evidence was undisputed that Samuel E. Byrne, Sr., had as early as 1886 or 1887 commenced the erection of a building, and had purchased the structural iron and stone in question to go into the building, and that the same had been prepared for the building, and had been delivered upon or near the premises, with the intention to place the same in the structure. My recollection of the evidence is that work on the building had ceased for want of funds at the time of the deed to Thurber, but of this I am not positive. It certainly had ceased before the deed to White. These were articles to be annexed to the land. The question as to the necessity of actual annexation also arises as to articles which have not yet been annexed to the land, but have merely been brought on or near the land with the intention of annexing them. Such articles

"Having ruled as I did upon the trial, and finding upon further examination no reason to change the ruling, I feel like adhering to the ruling, and must refuse a new trial upon this ground. Upon this subject I refer to the following case: The rea soning of Lowrie, Ch. J., speaking for the court, in Johnson v. Mehaffey, 43 Pa. 308, 82 Am. Dec. 568, is very satisfactory. The action was replevin for two rolls which had been cast for a certain rolling mill. The mill was sold to the plaintiff, who claimed th rolls. The rolls had been sold on execution as the personal property of the grantor. The rolls had been paid for and delivered at the mill, where they remained for about three years, in a rough and unfinished condition, without having been put into the mill. After stating these facts, the court said: These rolls were cast for this rolling mill, and paid for and delivered beside it, and lay there two or three years without being turned or finished off or put into the mill, and then the mill was sold by the sheriff. Do the rolls go with the mill to the purchaser? The test question is, Were they elementary parts of the mill at the time of the sale? And as matter of fact it is quite plain that they were not, for the mill had always run without them. No doubt they were intended to be made part of the mill, but we do not see how we can take the intention, without fact, in order to declare what constitutes the mill. If we do, then the

"(3) Upon the question of adverse possession or the statute of limitations the jury were charged as requested by defendants' counsel. Now for the first time defendants'

sale of a half-built or half-ruined house | had in 1896 made a bill of sale of this propwould include all the materials provided erty to the plaintiff, and that both the plainfor its completion or repair. A very provi- tiff and his vendor testified that they never dent man is quite sure to have on hand maintended to abandon it, I cannot say that the terials which he sees will some time be verdict was against the clear weight of the necessary for repair of his works or for sup- evidence upon this subject. plying deficiencies in them; but his having them with this intention does not make them constituent parts of his works. Thus, he will provide extra saws for a sawmill, or bolting cloth for a flour mill, or extra cast-counsel take the position that 'the uncontradicted evidence of the case showed continued adverse possession of the property by the defendants and their grantor for more than six years prior to the beginning of the suit.' The evidence showed that the lot and real estate, with a partially constructed wall, had been unoccupied for a long term of years before the defendants commenced the erection of their building in 1902. The premises near the sidewalk were in a somewhat dangerous condition, as they were upon a level with the walk, and Mr. White had placed guards there to prevent persons from going upon the wall, and a small candy store had stood there for a short time. I do not think that there was any evidence that Mr. White had done or performed any act that would indicate that he claimed to own the structural iron and stone that lay loosely scattered about, upon, and near the premises covered by his deed. In fact, all of his acts were more consistent with assertion of ownership of the real estate, than with an open, adverse claim of the ownership of this personal property, until he sold the same by bill of sale to the defendants in 1902. So I cannot agree with defendants' counsel that the verdict was even against the weight of the evidence upon this subject.

ings for the running gear, or lumber, nails, screws, and other materials, to make improvements or repairs; but this prudence does not convert personal into real property, so long as the fact remains that they are not yet made constituent elements of the mill or other structure. That fact we can ascertain and define with reasonable certainty; but we can have no measure for the ever-varying degrees of prudent forethought. And, if mere intention could aflix such articles to the realty, then a mere change of intention would unfix them, or prevent their becoming affixed, and we should thus be without any rule at all to guide us. Besides, it is rather a contradiction in terms to say at the same time that they are parts of the structure, and are intended to be made so. That these rolls will fit no other mill does not make them part of this one, or prove them so. Furniture for a dwelling house, shelving and drawers for a store, boilers and flywheel for an engine, the frame for an addition to a house, have often this very peculiarity, and great loss would arise if they should not be applied according to the intention with which they were made; yet they cannot be a part of the real estate without a purpose of annexation actually effectuated, though this peculiarity of adoption may, by inference or corroboration, supply the want or the weakness of direct evidence of annexation, whenever this fact can be reasonably said to be left in doubt by the other evidence.'

"(2) It will be borne in mind that defendants' requests upon the subject of abandonment were all given. The second

son for the motion is that the jury disregarded the clear weight of evidence and the charge of the court upon this subject. The jury was charged that abandonment is the relinquishment or surrender of rights or property by one person to another; that it includes both the intention to abandon and the external act by which the intention is carried into effect; that to constitute an abandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer. In view of the fact that Samuel E. Byrne, Sr.,

"(4) The court, upon its own motion, and without request from defendants' counsel, fully charged the jury upon the subject of estoppel. Defendants' counsel claim that the jury disregarded the evidence in the case and the charge of the court, and that defendants were entitled to a verdict upon that ground." In the light of the testimony of Samuel E. Byrne, Sr., it is not fair to say that the evidence upon this subject was undisputed. A question of fact was raised by the testimony of Mr. White and Mr. Byrne, which was for the jury to consider. Mr. White had testified to the representations claimed to have been made by Byrne that all of the material went with the premises, and that relying upon that, he purchased from Mr. Thurber, in the spring of 1889, and that he and Thurber. walked upon the premises, and that he then took possession of this personal property. It appeared by reference to the deed from Thurber that it was executed in Washing

ton, D. C. some time after its date.
is no doubt that this fact may have influ-
enced the jury. It was unexplained by Mr.
White. It also appeared that at the time
Mr. Byrne, Sr., had a talk with Mr. White
about his getting a deed from Thurber, he,
Byrne, contemplated finishing the building.
Had the building been completed, this ma-
terial would, in all probability, have gone
into it, and the security or value of the
property would have been increased. So
there was some force in Mr. Byrne's claim
in his testimony that, while he did refer to
the material as possessing a value, he did
not say that it went with the land. I
simply refer to this to show that there was
here a question of fact for the jury, and
that I cannot say, as matter of law, that the
defendants were entitled to a verdict upon
the ground of estoppel.

It is said the court erred in admitting the testimony of Byrne as to the gross cost of the structural iron. Mr. Byrne had testified that the structural iron cost him $62 a ton; that it had remained about the same price from then until now, and that he did not think over a fourth was affixed to the structure; that he was positive not more than a third was affixed. He was then asked for its gross purchase price, and the judge said that in connection with his other testimony. where he stated he thinks there has been no change, he would, for that reason only, permit the answer. We think this ruling was not error. See Kendrick v. Beard, 90 Mich. 589, 51 N. W. 645; Johnston v. Farmers' F. Ins. Co. 106 Mich. 96, 64 N. W. 5.

It is said the evidence did not warrant a verdict for the plaintiff, and the court erred in submitting the case to the jury. (1) Samuel E. Byrne, Sr., was estopped by his words and acts from claiming ownership of the materials as against Mr. White after his purchase from Thurber. (2) If the plaintiff, or his grantor, ever had any right of action, it was barred by lapse of time before this suit was commenced. There is nothing in the record to show the judge was requested to take the case from the jury. Upon the question of estoppel the jury was charged: "I first call your attention to this question of estoppel that is claimed here by the defendants in this case. It seems that at one time this property had been deeded by Mr. Byrne, Sr., to Mr. Thurber, of this city, and subsequently Mr. White obtained the interest that Mr. Thurber had by a deed of conveyance made in 1889, as I remember it. The claim of Mr. White here is that before he made the purchase from Mr. Thurber of the land or any of this property that he had certain conver

Theresations with Mr. Byrne, Sr., at a time when Mr. Byrne had not yet parted with this property by his bill of sale to his son, and the claim of Mr. White is that at an interview had between him and Mr. Byrne, at which Mr. Byrne desired him (White) to obtain the interest of Mr. Thurber, that Mr. White expressed the belief that the property was not worth the amount he would have to pay Mr. Thurber, together with the mortgages that were upon the property, referring to the Campbell & Wilkinson mortgage, the Dwyer mortgage, and the Hagerty mortgage; and Mr. White claims before you in his testimony that Mr. Byrne said to him: "There is a great deal there you don't see, that you don't count. There is material enough to almost finish the building. It all goes with it.' And Mr. White claims that in many talks had with Mr. Byrne before he (White) became interested by purchasing from Mr. Thurber, Mr. Byrne said to him that the property would all pass if he dealt with Thurber, and belonged to the property, and would go into and with the lot or the building. Now, gentlemen, the first question that arises is, Was this statement made by Mr. Byrne to Mr. White? While the court advises you that this personal property, consisting of this structural iron and stone, would not pass by a deed of the realty simply to Mr. Thurber, whether that was a mortgage or a deed, it would not pass by virtue of the instrument, it would have been perfectly competent for Mr. Byrne by an oral arrangemnt-by a verbal agreement-with Mr. Thurber at that time to have passed over and conveyed to him this personal property. And if, before Mr. White purchased this real estate of Thurber, and took, as he claims, Mr. Thurber's interest in this personal property, for I understand that it is claimed that accompanying this transaction of the deed from Thurber, he took, by virtue of a verbal arrangement with Thurber, the right to receive this personal property, and claims that it was pointed out to him and delivered to him by Mr. Thurber; and it is for you to weigh this evidence and say whether Mr. White is correct or not; that being his claim,—I say that, if Mr. Byrne gave him to understand by any conversations with him that Mr. Thurber owned not only the real estate, but also owned the personal property there; that it belonged to him, would pass to him (White) if he dealt with Thurber,— then Mr. Byrne is estopped, and his vendee, his son, is estopped from claiming any interest in this property. For a cannot stand by, or cannot induce another to purchase property in which he claims an


perfectly competent and proper for Mr. Byrne to have conveyed this property by oral arrangement to Mr. Thurber, if you shall say that he did do that, or, even if he didn't do that at all, but gave Mr. White to understand by language that a reasonable man would believe and be induced to act upon, that he had so conveyed it over to him, by a verbal or other arrangement, so that if he (White) did deal with Thurber he obtained the interest in this personal property,-then I say Mr. Byrne is estopped from claiming this property; and his son. who afterwards became the alleged owner of it by virtue of a bill of sale, could take no greater title than his father had; and, if his father had parted with his title to that property, then he could convey no interest in it. So much for this doctrine or claim of estoppel on the part of the defendants." Mr. Byrne denied most emphatically Mr. White's testimony as to Byrne's telling him the title to the iron and stone passed to Thurber by the deed. In Maxwell v. Bay City Bridge Co. 41 Mich. 453, 2 N. W. 659, the court said: "The doctrine of estoppel rests upon a party hav

interest, if he gives such purchaser to understand that he will get a good title if he deals with somebody else with reference to it. He is estopped from asserting any such claim. If you stand by while I am purchasing a horse of your neighbor, and say that your neighbor owns that horse, and, if I buy him, I will get a good title, and I purchase the horse and pay my money for it, you are estopped-your mouth is closedfrom ever afterwards claiming that you owned the horse at that time; because you have by your conduct and language induced me to part with my money, and it is inequitable and unjust for you to make a claim inconsistent with that. The doctrine is a familiar one in the books. When a person by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and thereby induces him to act upon that belief, so as to change his previous condition, the person ir ducing such belief will be estopped from afterwards denying the existence of such state of things to the prejudice of the person so acting. In other words, if a person knowingly and voluntarily so conducts himself in relation to his business as to justifying directly or indirectly made assertions, persons dealing with him in supposing and promises, or assurances upon which another believing that a certain state of facts exists, | has acted under such circumstances that he and such person so dealing with him relies would be seriously prejudiced if the asserupon that inference and belief, the person tions were suffered to be disproved or the so conducting himself will not afterwards promises or assurances to be withdrawn. be permitted to deny that such state of facts but as the doctrine, when applied, operates did exist, to the prejudice of the person to take away legal rights, it is no more than acting upon such belief. You will remem- common justice to require that the facts ber that in the conduct of the trial yester- which are supposed to call for its applicaday, and while Mr. White was upon the tion shall be unquestionable, and the wrong stand, the court asked him this question: which is to be prevented shall be undoubted. 'You may state whether the fact that Mr. Fredenburg v. Lyon Lake M. E. Church, 37 Byrne, Sr., stated to you that this material Mich. 476; Cronin v. Gore, 38 Mich. 381. was to go with the building, and the other Moreover, the question of its application conversations you have referred to, had any in any case is a mixed question of law and influence upon you in purchasing the prop- fact, and in cases of jury trial must be erty.' And you remember that Mr. White submitted to the jury under proper inclaimed and said in answer to that: Most structions. Now, however clear the facts decidedly. I wouldn't have touched it-I in support of the estoppel may seem to be, wouldn't have paid him $4,000-without it is always possible that there may be the complete understanding that all the maqualifying or overruling facts; and the conterial there belonged to or went with the clusions from the evidence must be drawn building. Mr. Byrne's own argument was by the jury, not by the court." that it was ample to cover the $4,000. I do not wish to emphasize this language by calling your attention to that; more than to call your attention to the point involved. You will weigh the testimony of Mr. Byrne upon the opposite side of the question, in which he denies that he said to Mr. White that it would go with the building, or with the transaction or trade with Thurber. Now, who is right about this, gentleman? If you shall say that Mr. Byrne used this language, it having been


barred by lapse of time, we think it sufIn relation to the claim of plaintiff being ficient to refer to what was said by the learned trial judge in overruling the motion for a new trial.

We now come to the most difficult question in the case; that is, whether, as claimed by defendants, the court erred in the instruction given to the jury that the structural iron and stone did not become a part of the realty, and refusing the request of defendants, counsel on that subject. It must be confessed there is a good deal of

conflict in the authorities. They are collated at length in 13 Am. & Eng. Enc. Law, 2d ed., at pages 601-610, and in the notes thereto. We are impressed with the reasoning of Chief Justice Lowrie in Johnson v. Mehaffey, 43 Pa. 308, 82 Am. Dec. 568, from whose opinion Judge Stone quoted so copiously. There is an expression used in Curtis v. Leasia, by Justice Sherwood, that tends to support the claim of defend ants, but it is obiter dictum. The court held in the case that the rails which were claimed to be realty were not realty, but were personal property. See Harris v. Scovel, 85 Mich. 32, 48 N. W. 173. In this case it appears the defendants made new plans for a building, which rendered the



(88 Md. 500.)

1. The failure to box or otherwise pro

tect a rapidly revolving upright shaft coming up through the floor in an alley or passageway where an inexperienced girl is

required to sweep, and who is not warned of

the danger, may be found by the jury to constitute negligence which will render the employer liable for injuries to her when her clothing is caught and wound upon the shaft.

2. Sundays cannot be excluded in computing the time for signing of bills of

exception under Code Pub. Loc. Laws, art. 4. § 170, allowing it to be done "at any time within thirty days" after verdict or finding

of fact.

(December 20, 1898.)

PPEAL by defendant from a judgment
of the Court of Common Pleas in
favor of plaintiff in an action brought to
recover damages for personal injuries al-
leged to have been caused by defendant's
negligence. Appeal dismissed.

The facts are stated in the opinion.
Messrs. Carroll T. Bond and William
L. Marbury, for appellant:

It is not the duty of an employer to provide against all possible injuries to his employees, but only against such as are "likely to occur" in case of his failure to take certain

structural iron and the dressed stone unfitted for use therein. Was this material up to that time real estate, and from that time on personal property? If so, would the same result have followed had Mr. Byrne changed the plan of the building while he owned the property?


AMERICAN TOBACCO COMPANY, Appt., | precautions, or, in other words, such as

would probably result therefrom.

We are inclined to agree with the trial judge as to the weight of authority, and that the judgment should be affirmed.

Hooker, J., concurred with the Chief Justice.

Petition for rehearing denied January 30, 1905.

Bailey, Personal Injuries Relating to Master & Servant, pp. 18, 19, and cases cited.

By thirty days is meant thirty working days, or thirty judicial days.

The right of appeal being a valuable one. itself expressly conferred by statute, and allowed to be exercised at any time within sixty days from the entry of the judgment, any statute operating as a practical forfeiture of that right will be construed as liberally as possible to prevent its working such a forfeiture.

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State v. Harris, 121 Mo. 445, 26 S. W. 558; McChesney v. People, 145 Ill. 614, 34 N. E. 431.

The statute expressly says that the bill within thirty days from the rendition of the of exceptions "may be signed at any time verdict;" that is to say, on any one of those thirty days. Surely the legislature will not be considered to have intended to aua Sunday,-to give express legislative reca Sunday, to give express legisltive rec

NOTE. AS to the duty of a master to warn his servants of danger, see note to James v. Rapides Lumber Co. 44 L. R. A. 33.

As to exclusion of Sunday in computation of ognition to Sunday as "a day appropriate

time, see note to Brown v. Vailes, 14 L. R. A. 120.

to business of this character." The only construction which can prevent this result, a

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