Williams v. Wallace, 260 N.C. 537 (1963)

Nov. 20, 1963 · Supreme Court of North Carolina

260 N.C. 537

JACOB WILLIAMS v. W. EDWARD WALLACE.

(Filed 20 November 1963.)

Trover and Conversion § 2—

In an action in trover and conversion against Jessor by a stranger 'to the lease, demurrer is properly allowed when it appeairs from the pleadings that under the terms of the lease 'the personalty attached to the realty should become the property of lessor upon -the tesminiation of the contract or lease and that the particularly described equipment alleged to have ¡been converted was of such weight as to be prima facie attached to the realty and that the other personalty wias not described with sufficient definiteness, since in no event could plaintiff have rights in the personalty superior to that of the lessee.

Appeal iby plaintiff from' Braswell, J., May 1963 Civil Session of JOHNSTON.

The complainit allegas these facts:

On April 22, 1960 the defendant, leased to one J. Noah Williams a lot ¡north of .the city limits o»f Smithfield for a .term of five years at a monthly rental. The lease (made a part of the complaint) required ■that defendant construct a building 48 x 40 feet 'on 'the lot and provided “that ¡all of the equipment that the party of the second part (lessee) installs in the building .and attaches to any portion of the building shall become the property of the party of the first part (lessor) upon the termination of .this contract or lease.” After the lease was executed, a .corporation designated Smithfield Ham Plant, Inc. wias organized and subsequently operated its- 'business on the leased premises. Plaintiff is president of the corporation. At his own expense be installed .the following articles of personalty, reasonably worth $20,349.73, in the building:

“(T)wo seven and one-half ton refrigerator compressors, one hot water heater system, one couch, one .smoke maker and numerous other arricies of personal property used in the operating of said ¡business.”

On July 15; 1962, fifteen days before the rent became due, defendant borrowed the keys to the building from J. Noah Williams, went into ¡illegal possession, and has since refused to surrender possession of the premises to the plaintiff.

Plaintiff pray© that he recover the sum of $20,349.73 from the defendant for the 'conversion of 'his equipment and fixtures. The defendant’s demurrer to the complaint for failure to ¡state a cause of action was sustained. Plaintiff then moved to amend the complaint 'by making J. Noah Williams a party plaintiff. This morion was denied but the court offered plaintiff an opportunity “to file an amended complaint witlh reference ito /any causes of action against defendant W. Edward Wallace that the original complaint might ¡have.” Plaintiff declined to amend and appealed from the order’ isustaindng the demurrer.

E. R„ Temple for plaintiff appellant.

Wellons ■& Wellons for defendant appellee.

Per Curiam.

This is .an -action for the .eomversiom of personal property -alleged to belong solely to- the plaintiff and not -an action for the wrongful -repossession -of the leased premises. Therefore, Jacob Williams is- the only necessary and proper p-arty plaintiff.

Plaintiff is not -an assignee of the lease -contract between J. No-ah Williams land the defendant. Had he installed the equipment in the building as assignee, he would then 'have -stood in the shoes of the original lessee, J. Noah Williams, whose rights to remove equipment at the end of the term were defined by the lease. Sanders v. Ellington, 77 N.C. 255; Springs v. Refining Co., 205 N.C. 444, 171 S.E. 635. Nevertheless, lany -equipment plaintiff put into- the 'building must have been put there pursuant to authority or license from J. Noah Williams. A fortiori, under the facts of this case, plaintiff .can at no time have any greater nights -w-ith respect to- the fixtures and equipment than w-ould have been tavailabia to the lessee of the premises.

The lease specifically prohibits J. No-aih Williams from removing any equipment which has been .attached to -any portion -of the building. Prima facie, tw-o seven -and one-half ton refrigerator compressors, one hot water heater system, and one .smoke rnak-er would be -attached to the building. The either items alleged to have 'been converted are not described in the complaint w-iitih that degree of -certainty which is required in -an action for conversion. “. . . (G)oods claimed to- -have been converted should be described wi'th convenient certainty -in ord-er that the jury may know what is -meant -and in order that the defendant may be protected from -another action -biased upon the same cause of action.” Norman v. Rose Lake Lumber Co., 22 Idaho 711, 128 Pac. 85; 53 Am. Jur., Trover and Conversion, § 167.

“In an action of trover, -the declaration, petition, or complaint -must describe the property converted, otherwise it will -be fatally defective.” 65 C.J., Trover and Conversion, § 123; 89 C.J.S. § 97.

It may be that plaintiff has a cause of action against the defendant for the -conversion of some personal property. If so, on a proper complaint, he may still -have his d-ay in court. The -complaint in this case does 'not set forth the plain 'and concise statement of facibs envisaged by G.S. 1-122.2.

The judgment sustaining the demurrer is

Affirmed.