majority">Houston, J.,

charging the jury :

This, gentlemen of the jury, is an action of replevin by Geo. F. Ott, the plaintiff, against the firm of Specht & Spahn, the defendants, to recover the possession of certain copper, brass, and iron machinery, to wit, a copper kettle, a pump, a flat cooler, a mash-machine, a false bottom in mash-tub, shaftings, drain-pipes, connections, spigots, and all the pipes and fixtures necessarry for the brewery of the said defendants, located at Fifth and DuPont streets in this city, let and hired by him to them by a written contract under the seals of the parties, respectively, in the following words: “ To be used by the said defendants in their said brewery for the term commencing with the date of the sealing and delivery of it, the 13th day of February, 1885, and ending on the 28th day of August, 1885 ; reserving for the hire and use thereof, for the said term, the sum of four hundred dollars, to be paid on the 28th day of February, 1885; the further sum of four hundred dollars to be paid on the 28th day of May in said year; the further sum of four hundred dollars to be paid on the 28th day of June in said year; the further sum of four hundred dollars to be paid on the 28th day of July in said year; and the further sum of three hundred dollars to be paid on the day of the expiration of the term above specified. And it is further agreed by and between the parties to these presents that if default shall be made in the payment of any of the above-mentioned installments or payments for the space of thirty days after such installment or payment shall have become due and payable, then it shall be lawful for the said party of the first part, the said George F. Ott, the plaintiff, or his authorized agent, to enter upon the premises where the said machinery shall be kept, and to re-enter into possession of said machinery^and to take away, remove, repossess, and enjoy the same as though these presents were not made. And the said parties of the second part^ the said Specht and Spahn, the defendants, do hereby covenant and agree with the said party of the first part that said machinery shall be held and kept at the brewery aforesaid, and not removed there*69from without the written consent of the party of the first part thereto first had and obtained; and at the expiration, or sooner determining, of the said term, they will give up and surrender said machinery to the said party of the first part in as good condition as reasonable wear and use will permii. And the said party of the first part doth hereby covenant and agree with the said parties of the second part, that the said parties of the second part on paying the above-named installments in the manner above agreed upon, and performing the covenants aforesaid, shall and may peacefully and quietly have, hold, and enjoy the said machinery for the said term. And the said party of the first part doth hereby covenant and agree with the said parties of the second part that if the said parties of the second part shall well and truly keep the covenants herein made, and shall make no default in the payment of the aforesaid installments as the same shall become due and payable, and this letting or hiring shall not sooner be determinated by mutual consent or otherwise, that he, (the said party of the first part,) upon the payment to him by the said parties of the second part of such additional sum of money as shall be the excess of the price or value of said machinery, when delivered, over and above the amount of the aforesaid installments, will make, execute, and deliver to the said parties of the second part a good and sufficient bill of sale of said machinery, the consideration whereof shall be the above-named payments received for the said term, and the additional sum of money above named.”

Such are the words of the contract, the formal execution of which, under the hands and seals of the parties, respectively, to it, —the plaintiff and the defendants in this case,—has been admitted by the counsel for the defendants, and is now in evidence before the jury, and is indirectly and substantially the foundation of the action on which the plaintiff bases his right in law to recover the damages he now demands at your hands by reason of the alleged breach of it by the defendants. And we will here say to you that as the contract is not only express and in writing, but under seal, *70and in the most obligatory form known to the law, if it is valid in law, and binding nn the parties in this case, the defendants are estopped from denying the import and meaning of its terms, which in the opinion of the court are so plain as to admit of no question or doubt whatever; but, even if there could be any doubt as to the imeaning of the terms of the contract, it would still be the province and duty of the court to interpret and determine the meaning of them to the jury, and the jury would be bound by it.

But the main question on which this case depends before you is whether the machinery embraced in the contract, which were originally and in the beginning goods and chattels or personal property belonging to, and in the actual possession of, the plaintiff in the action, afterwards became real property, and part and parcel of real estate of the defendants, by being placed in and connected with their building and premises, which constituted their brewery in this city, in the manner stated in the testimony of the witnesses, under the contract between the parties to the suit, and all the evidence, which you have before you in regard to the matter. And this constitutes what is termed a “ mixed question of law and factfor it is contended by the counsel for the defendants that the machinery thereby became, in law, fixtures to the real estate, and thereby became real estate, and could not be replevied or detached from the real property by the sheriff on a writ of replevin. And we say to you that if it did thereby become attached to the brewery so as to constitute what is termed and contemplated in law a “ fixture to real property,” under the facts and circumstances proved in this case, and the true meaning and intention of the contest, then the contention of the learned counsel is correct, and an action of replevin cannot be maintained for it, because an action of replevin will not lie for real property. In general, all articles of machinery taken into such buildings, and permanently attached to the foundations, walls, or any part of the structure, so as to constitute a permanent part of the mill or other building designed for business purposes, in the absence of any proof to the contrary, is presumed *71in law to be a fixture of it, and is considered to be such so long as it continues to be so attached to the real property; and this is because, in such cases, it is presumed that such was the intention of the owner of it when he so put it into the building. But as legal and inflexible as the rule of law in regard to such fixtures, in such cases, may be, it does not prohibit or prevent parties, by express contract and intention on their part, from providing that such machiney shall continue personal property for a limited time, at least, which without such agreement and intention on their part would, when attached to real estate become part of it, and would otherwise become, in law, real instead of personal property, or prevent a maker of such machinery from contracting with the owner of such brewery to let or hire to them for such a time as they may agree upon, and to set it up in their brewery, with all the attachments to the building required to put it in operation; and that his ownership of it as personal property should continue until they should, at the expiration of that time, become the purchaser of and pay him for it, without making it, by operation of law, a fixture, and part of the real estate, contrary to the intention of both of the parties to the contract.

It is manifest, from the terms of this contract, that it was in the meaning and mutual understanding of the parties to it, what is now generally termed a “ conditional sale ” of the goods and chattels or machinery in question by the plaintiff and the defendants, •on the terms and conditions expressed in it; and such a contract has been ruled to be valid in this State, in the case of Engine Co. v. Davis, 5 Houst. 192, and, if so, then it was binding on the parties to it, and must be enforced in a court of law according to the true meaning and intention of the parties, as expressed in terms and stipulations contained in it. And in all valid contracts the law requires that they shall be performed in good faith by the parties to them, according to the obvious meaning and intention of the terms employed in them; and, on the face of this contract, we think nothing is clearer, from the terms and mutual covenants contained in it,* *72than that it was the intention and understanding of both of the parties to it that the plaintiff, after putting the machinery in the brewnry, and in the possession of the defendants, as the bailees of it, under the contract, was to continue to be the absolute owner or bailor of it during the term or time expressed in it, or at least until the defendants have fully paid for it, and performed the stipulations of the contract on their part, and for which a term of not less than about seven months was limited after the date of the contract,- unless sooner determined, by the mutual consent of the parties or otherwise. And that such was the understanding and intent of both of the parties to that effect is only strengthened and confirmed by the further stipulation contained in the contract that, if default should be made in the payment of any installment named for the space of 30 days after it should become due, it should be lawful for the said party of the first part, or his authorized agent, to enter upon the premises where said machinery might be kept, and to enter into possession of said machinery, and to take away, remove, repossess, and enjoy the same as though these presents were not made; and also by the further stipulation in it that, at the expiration or sooner determining of the said term, they (the said parties of the second part) will give up and surrender said machinery to the said party of the first part in as good condition as reasonable wear and use will permit; and also the further stipulation in it, on the part of the party of the first part, that the said parties of the second part, on paying the above-named installments in the manner above agreed upon, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said machinery for the said term. For a direct recognition, or an express admission in terms, that the plaintiff was to retain absolute ownership of the machinery in question, could not more clearly indicate the understanding and intention of the defendants to recognize and admit that he was the bailor, and that they were but bailees, of the machinery in question during the whole of that term. And as such was clearly the import of the terms and stipulations of the contract *73on that point, and that defendants made final default in paying the installments, they could not before that claim to hold the machinery as fixtures of their freehold by mere operation of law, contrary to their contract and covenants, with the plaintiff, so that by the terms of them he retained such a recognized right of property in the machinery as goods and chattels, with the right, under their contract and covenants, to reclaim and retake the possession of them on the occurrence of the condition prescribed in the cohtract; and much less could they claim, after condition broken, an indefeasible title to them as real property attached to their brewery, by reason of a breach of the condition of the contract on their part.

As therefore, under the facts and circumstances proved in this case, the various articles of machinery in question could not have become fixtures or a part of the realty of the defendants to which they were attached, they continued, by virtue of the contract between the parties to this action, the goods and chattels or personal property of the plaintiff, let or hire to the defendants for a term of uncertain duration, but to be absolutely determined at his will and pleasure on one condition, namely,' the default of the defendants to pay any installment contracted for when due, and which occurred within the times limited for the payments of them,—but two of them, amounting to $400 each, being paid out of five in all of them, amounting in the aggregate to $1,900,—and thereby defaulted the subsequent sale of the articles to the defendants, as contemplated and contracted for in the agreement. And, upon that default on the part of the defendants, plaintiff made demand for the possession of them, through an agent of his, appointed for “the purpose, who was peremptorily refused by the defendants to be allowed to take them from their premises. And upon that demand and refusal, which has been proved, and is not denied, this action of replevin was instituted by the plaintiff against them; and we think it will properly lie in their ease, as it is an action of replevin for goods and chattels in the possession of the defendants, and unlawfully detained, as it is alleged, from the possession of the plain*74tiff by the defendants, and is not, under the proof in this case, an action of replevin for the possession of real property.

It is further in evidence before you that, when the writ of replevin in this action was served by the sheriff upon the defendants, they denied the right of the plaintiff to the goods and chattels mentioned in the writ, and claimed that they were their goods and chattels; whereupon the sheriff, as it was his duty to do in such a case, allowed the defendants to retain the possession of them on their entering into bond in a sufficient penal sum, and with sufficient security, in his opinion, to him as sheriff, for the forthcoming and return of the said goods and chattels by them, in case the question of the right of property in them should be decided against them in the trial of this action. And upon these facts we have been asked by the counsel for the defendants to charge the jury that as an action of replevin primarily lies to recover the possession of the goods and chattels claimed by the plaintiff in it, and wrongfully taken or unlawfully detained from him by the defendant, it is incumbent on the plaintiff, in the trial of the action, to prove to the satisfaction of the jury that he had an immediate and exclusive right to the possession of the goods and chattels in question at the time when the action was commenced, and, if he fails to do that, he is not entitled to recover in the action, and the verdict of the' jury should be against him, because he must recover on the strength of his own right and title to the immediate possession of the goods sued for, and not on any weakness or imperfections in the claim or right of the defendant; while, on the other hand, we have been asked by the counsel for the plaintiff to charge you that, as the defendants, on the service of the writ of replevin in this case by the sheriff upon them, claimed to have a right to the possession of the goods and chattels mentioned in it, as I have before stated, and to hold them in their possession, and the sheriff left the same in their possession on taking their bond with security, as he was bound to do in such case, for the return of the goods in case the decision shotild be against them in the trial of this action, and which bond *75of the defendants, so given, the counsel for the plaintiff have produced in evidence before you, it is incumbent upon the defendants to prove to the satisfaction of the jury that they are entitled to the possession oí them, or no verdict can be rendered in their favor. But the defendants have specially pleaded, in defense of the action, that the property in the goods is in themselves, and have likewise pleaded that the property in them is in several other persons severally named in such respective pleas; and while, in an action of replevin, each of the parties, in certain respects and shifting relations of it, may practically become a plaintiff in it, we must say to you that, although the defendant's in this case may be bound, for the reasons last assigned, to prove their legal right to the possession of the goods to the satisfaction of the jury, to entitle them to your verdict, it cannot relieve the plaintiff of the onus of proving to your satisfaction that he had a right to the immediate possession of them when he commenced the action; and although an hypothetical case of replevin might arise, in which neither the plaintiff nor the defendant could do that, we do not apprehend that either in this case, or in any other that may occur, there is much danger that a jury will be satisfied from the evidence that the right to the immediate possession of the same goods was, when the action was begun, both in the plaintiff and in the defendant in it.

We will, however, say to you, in regard to the claim of right by the defendants to the said goods and chattels in the said writ of replevin mentioned, made to the sheriff, when he served it upon them, and the bond which they thereupon gave to him for the return of the same, as we have before stated, it concludes and prevents the defendants from denying the identity of the goods and chattels so claimed and retained by them with the goods and chattels mentioned in the writ, and the possession of which was therein claimed by the plaintiff. But if you are satisfied, from the evidence, that the beer-cooler, or any other article or part of the machinery in question which has been presented and included in the claim of the plaintiff before you, in the progress of the trial, was *76not mentioned or included in the writ of "replevin and the declaration filed in the action, we instruct you that the plaintiff cannot recover any damages for the value of that, or of any other part of the machinery not mentioned in the writ and declaration ; but for the value of all mentioned and included in the writ and declaration he is entitled to recover damages, according to all the evidence before you as to such value, as you are the judges of the weight and credit of all the evidence on that point in the case. As the court, however, are the judges to decide the question whether the machinery remained the goods and chattels of the plaintiff, as the bailor, in the possession of the defendants, as the bailees of it, for'the time being, and for a limited term of comparatively brief duration, so long as they should continue to hold that relation to each other in respect to it, or became, after it was placed and set up in the brewery of the defendants for operation, and attached to it, in the manner described by the witnesses called before you for that purpose, in contemplation of law, fixtures, in its technical sense and meaning, and real property, as a part of the building and premises of the defendants, we are bound to say to you, as this depends for its solution on the terms of the written contract, and the meaning and intention of the parties to it, apparent from the covenants contained in it, that we are clearly of the opinion that the said machinery did not become fixtures in law, but remained and continued goods and chatties or personal property, to the immediate and exclusive possession of which the plaintiff, as the sole and actual owner of them had a legal right, when the action lof replevin was commenced for the recovery of the goods themselves; but as the defendants, on the service of the writ upon them, asserted their claim to” the absolute ownership of them as fixtures, and a part of their real estate, and gave bond, and retained them in their possession, the action has now become, in conformity with long-established and uniform practice in this State, an action for damages to the value of the said goods and chatties thus detained and withheld by them from the x plaintiff. And this decision of the Court, made after mature con*77sideration of the main, if not the sole, material question of law or fact involved in the case, disposes of all questions of mortgages and mortgage liens on the premises of the defendants, which could not in any court have been affected or impaired in value by any judgment recovered in this action as it now stands, and has stood ever, since the defendants gave bond and security to the sheriff, and retained the said goods and chatties, and thereby practically converted their action from that time from an action for the recovery of them in specie to an action for the recovery of damages to the value of them in money, with interest thereon, subject to such credits as the counsel for the plaintiff has admitted should be allowed the defendants in the statement of the account which he submitted before you at the close of his argument.

We will merely say, in the last place, that we consider the ruling at the present term of this court in the case of Smith v. Horn* as not at all applicable to this case, because the action in this case is between the original parties to the contract for the conditional sale of goods and chattels, while in that case the action was on the conditional sale by the vendor of them; not against the original purchaser of the goods, but against a subsequent bona fide purchaser of them from him, without any knowledge or notice of the conditional sale of the goods to his immediate vendor, and who he supposed at the time had a perfect and unincumbered right to them, but who, to his surprise, had the goods taken from his possession on a writ of replevin two years afterwards, at the suit of -the original vendor, for a balance to him for them from the first purchaser; and the consideration of the fact that the defendant was a subsequent bona fide purchaser, without any knowledge that his vendor held the goods under a conditional sale from the original vendor, and the time that had elapsed before he brought his suit against the defendants, and other indications in evidence of unreasonable loches and delay on his part in bringing the suit, under the circumstances shown, induced the court to hold, in that case, that it “ had not been commenced in a seasonable time.”

The case of Mathews v. Smith, page 22 current volume, must be intended.

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