This is a replevin action in which the plaintiff has been awarded possession of a sprinkler system of the value of $8,000 together with damages amounting to $948.67 and costs and disbursements amounting to $162.35, or in the event that possession is not delivered to the plaintiff, the sum of $9,111.02.
The sprinkler system was installed by the plaintiff, an insurance broker, in buildings in the possession of the Brooklyn Furniture Company. The contract provided that title should remain in the plaintiff and that at the termination of the contract or breach or repudiation thereof by the Brooklyn Furniture Company, the plaintiff might, at its own cost and expense, enter upon the premises and remove any or all of the equipment.
The furniture company was a tenant of the building under a lease which would expire in 1946. The landlord consented in writing to the agreement under which the sprinkler system was installed.
The defendant entered into possession of the premises and purchased and acquired all of the assets of the Brooklyn Furniture Company. Prior thereto, defendant was informed of plaintiff's title to the equipment. At the trial it was agreed that the defendant occupied the same position under the agreement that the furniture company would occupy if defendant.
Before the commencement of the action the plaintiff demanded possession of the sprinkler equipment, which demand was refused. Thereupon this action was brought to recover the possession of the equipment or its value, *Page 98 alleged to be $11,500, with damages for detention and costs and disbursements of the action. The action was tried before the court, a jury having been waived. It found the value of the sprinkler system at the time of the trial to be $8,000. There is evidence to support such finding, which has been unanimously affirmed by the Appellate Division.
The contract provided that the sprinkler equipment should retain its character as personal property. Such a contract was valid between the parties and fixed the character of the equipment after it was installed. The general rule is that where the contract of sale of personal property which is to be attached to real property evinces conclusively the intent that it shall remain personal property until it is paid for, the intent may control the result which would ordinarily flow from the manner in which the personal property is attached to the real property.
The contract in question clearly evinces an intent that the sprinkler system should remain personal property. Moreover, there is testimony from which a finding could be made that the sprinkler system could be moved without loss of support to the building.
The trial court was justified in deciding that the sprinkler equipment retained its character as personal property. (Pers. Prop. Law, § 67; Brearley v. Cox, 24 N.J.L. 287; Ford v.Rowe, 195 Mass. 216; Detroit Steel Cooperage Co. v.Sistersville Brewing Co., 233 U.S. 712, 716; Gill v.DeArmant, 90 Mich. 425; Atlantic Realty Co. v. Wlodar,119 App. Div. 850; Madfes v. Beverly Development Corp., 251 N.Y. 12; Goldberg Sons, Inc., v. Weisberg-Goldman Corp.,260 N.Y. 690.) Being personal property, an action of replevin lies. (Harris Bros. v. Nichols, 247 Mich. 89; Brearley v. Cox,supra; cf. 26 C.J. 736, where many cases are collated in a note.
The principal contention of appellant is that the trial court committed reversible error in fixing the value of *Page 99 the property involved. The evidence was undisputed that the equipment if taken out of the building would be practically worthless; that it would cost as much to take it out as it would be worth when out. It was urged by appellant that the value of the system at the time of the trial should have been fixed at a mere nominal sum.
In approaching the solution of the question presented for determination, it is well to have in mind just what the plaintiff claimed and what the court found.
The complaint alleged that the equipment was personal property by reason of the terms of the contract; that plaintiff had a right to the possession of the same; that defendant was in possession thereof and refused to surrender possession to plaintiff after demand. All those facts were found in favor of the plaintiff. The judgment awarded possession to the plaintiff and fixed the value of the equipment at $8,000. The judgment after awarding possession of the chattels to plaintiff and fixing their value, provided "or in the event that possession of the aforementioned chattels is not delivered to the plaintiff herein, the plaintiff * * * recover from the defendant * * * the sum of $8,000.00, the value" thereof. Briefly, the judgment is that defendant wrongfully had possession; that plaintiff is entitled to possession or in the alternative to $8,000, the value of the chattels. Under the judgment the plaintiff is entitled to retake the chattels, or if it cannot retake them it is entitled to recover from the defendant $8,000, their value. If the defendant desires to purge itself of the wrong which it has committed in refusing to permit the plaintiff to retake its property, all that it has to do is to obey the judgment of the court and say to the defendant "take your property." Under the judgment, the defendant is not bound to deliver the equipment taken apart and put outside of the buildings. It did not place it in the buildings. It found it in the buildings when it took over the lease. (Nimon v.Reed, 79 Iowa, 524.) *Page 100
Boldly stated, its contention is that it may refuse to obey the judgment, wrongfully prevent the plaintiff from taking its property, appropriate it to its own use and escape all liability to the plaintiff for its value except for a nominal sum, that is, what the materials in the system would be worth after removal, less the expense of removal. Manifestly there is something wrong with such contention.
"A rule of damage [value] which works out such a result cannot have a basis of principle or justice to stand upon." (Allen v.Fox, 51 N.Y. 562, 566.)
In an action of replevin under the English common law, the only relief which a plaintiff could obtain was a judgment awarding the possession of the property.
In our country the action has gone through a process of evolution by reason of statutory enactments, in most if not all of the States. In this jurisdiction the action may be maintained whenever (with exceptions not material here) personal property of a party has been wrongfully taken from his possession or wrongfully withheld and the judgment in such action must be in the alternative awarding possession to the party found to be entitled thereto or in the event that possession cannot be obtained by the successful party, then that the prevailing party recover the value of the property to be fixed by the judgment. (Civ. Pr. Act, § 1124.)
The judgment in the case at bar so provides. It is only in the event that plaintiff cannot obtain delivery of the property in satisfaction of the judgment that it may recover its value as fixed in the judgment.
The value of the property must be fixed "at the time of the trial." That is the command of the statute, Civil Practice Act, section 1120. Its value at that time was its value as a sprinkler system, not as junk out on the sidewalk. The owner of the building is not a party to this action.
The same measure of value applies in this action where *Page 101 the defendant retains possession of the chattels, as would apply in an action where a plaintiff had replevied chattels and taken possession thereof and defendant sought a judgment for the return of the chattels or a judgment for their value. (Civ. Pr. Act, § 1119; 2 Sedgwick on Damages [8th ed.], § 529.)
If a defendant desires to retake chattels which have been replevied by a plaintiff, he must deliver to the sheriff an affidavit stating the value of the chattels and deliver an undertaking for twice their value as stated in the affidavit. (Civ. Pr. Act, § 1103.)
It would seem that the value to be stated in such affidavit should be the actual value of the chattels as they are at the time of making the affidavit.
Undoubtedly the general rule for measuring the value of the chattels sought to be recovered in a replevin action is the value of the chattels to the plaintiff. The rule is not inflexible, and courts will not permit an injustice to be done in order to follow a general rule, but will vary the rule in order to work out justice in extraordinary and unusual cases. Strict adherence to the general rule in this case would enable the defendant, a wrongdoer, to profit by a measure of value favorable to itself and unfair to the plaintiff. The defendant would be permitted to profit by its own wrong, in violation of a general principle involved in the law of damages. (Allen v. Fox, supra.)
We believe that the measure of value applicable under the facts of this case was stated by Judge DUER in Suydam v. Jenkins (3 Sandf. 614, 624): "Even where the market value of the property, when the right of action accrued, would more than suffice to indemnify the owner, it is not in all cases, that the liability of the wrongdoer should be limited to that amount. It is for the value that he has himself realized, or might realize, that he is bound to account, and for which judgment should be rendered against him. Hence should it appear in evidence upon the trial, that he had in fact obtained upon a sale of the *Page 102 property a larger price than its value when he acquired the possession, or that he still retained the possession, and that an advanced price could then be obtained, in each case the increase upon the original value, (which otherwise would remain as a profit in his hands), ought to be allowed as cumulative damages.
"We think it follows from the observations that have been made, and the illustrations that have been given, that the principles which we have stated as those which ought to determine the amount of the judgment, will be carried into effect in all cases by adding to the value of the property when the right of action accrued such damages as shall cover, not only every additional loss which the owner has sustained, but every increase of value which the wrongdoer has obtained or has it in his power to obtain; and we are satisfied, after much consideration, that there is no other mode of computation by which as a universal and invariable rule the same result can be obtained."
Courts of other jurisdictions have adopted the principle applied by the trial court in this case. (Blake-McFall Co. v.Wilson, 98 Or. 626; Smyth v. Stoddard, 203 Ill. 424.)
The judgment should be affirmed, with costs.
POUND, Ch. J., KELLOGG and CROUCH, J., concur with LEHMAN, J.; CRANE, J., concurs in separate opinion; HUBBS, J., dissents in opinion in which O'BRIEN, J., concurs.
Judgments reversed, etc. *Page 103