HALLEN V. RUNDER. fixtures and stoves there; that she said she did not know whether she would take to the fixtures or not, but (Tim. 1634.) that the witness was to appraise them. For the defendant it was objected, first, that indebitatus assumpsit was not maintainable for fixtures before severance; and secondly, that a contract in writing was at all events necessary by the statute of frauds, 29 Car. 2. c. 3. s. 17. The learned baron told the jury, that if they thought the defendant had authorized the broker to appraise, he was of opinion she had given him authority to sign the appraisement, and that that was a sufficient note in writing if it was necessary. The jury found a verdict for the plaintiff for 401. 10s. In Hilary term 1834 Kelly moved for a nonsuit or new trial. First, indebitatus assumpsit was not maintainable for fixtures; and secondly, there was no contract in writing to bind the parties; for even if the valuation was such a contract, the evidence contradicts the broker's having any authority to sign it within 29 Car. 2. c. 3. s. 17. The fixtures in Lee v. Risdon (a), appear to have been only the common household fixtures. That case shows that the price of fixtures fastened to a house cannot be recovered under a declaration for "goods sold and delivered." [Bayley B. Did it appear there that the plaintiff was owner of the inheritance, or of a lesser interest? for if he was the former, the fixtures would be parcel of his freehold, so as not to be liable to be taken as goods and chattels under a fieri facias against the tenant (b). Here they have ceased to be the property of the reversioner, having been originally sold to the termor, with whom the defendant has bargained to take them at the end of his term.] Lee v. Risdon was decided on the point of pleading. [Lord Lyndhurst C. B. Both house and fixtures were there taken of the landlord, and not from (a) 7 Taunt. 188. (b) See cases collected ante, 618. n. (a). HALLEN บ. RUNDER. the outgoing tenant. Then were they not parcel of the freehold at the time of the sale? Bayley B. Risdon undertook to purchase parcel of the freehold, (Trin. 1834.) which did not cease to be such till the purchase was completed; whereas here the plaintiff had bought the fixtures, and had a right to remove them as personalty during his term. [Lord Lyndhurst C. B. He had bought the fixtures, and having a right to remove them forbore to exercise it in consequence of the defendant's request. The key of the house was delivered to the defendant's son before the valuation, and it does not appear that she afterwards repudiated the possession.] The authority of Lee v. Risdon depends on the question, whether a severance of fixtures is effected by the sale of them by a landlord to a tenant, as a matter separate from the demised premises, after valuation made, and possession taken by the tenant, but before payment of the purchase money? If it is so effected, Lee v. Risdon could not be supported, it having decided that notwithstanding all those circumstances they remained part of the freehold, the purchase money not having been paid. [Bayley B. The severance was complete when the purchase was completed, and not before. Neither at the time of the sale, nor till the severance, were they goods sold.] Kelly then urged, that the evidence did not show the broker's authority to do more than appraise. The court refused a rule on the first point, Lord Lyndhurst citing Pitt v. Shew (a), and saying, that the defendant being in the situation of landlord of the premises, and having agreed during the term to purchase the tenant's fixtures, which accordingly remained on the premises, such a purchase might be made notwithstanding Lee v. Risdon, on the grounds of dis(a) 4 B. & Ald. 206. HALLEN V. RUNDER. tinction from that case pointed out by Bayley B. But they granted the rule for a new trial on the other (Trin. 1854.) point; Bayley B. adding, that it might be a question whether the defendant had not accepted the fixtures by not having given the plaintiff notice to take them away. Thesiger and Petersdorff showed cause in Trinity term (a). The contract was, that in consideration that the plaintiff would not remove the fixtures during his term, the defendant would take them at a price to be subsequently fixed by the broker. The appraisement was merely a mode of ascertaining that price, and not a condition capable of defeating the contract by matter subsequent. Unless these goods are not treated as goods and chattels between the parties, the broker's authority to appraise must be taken to include an authority to complete the appraisement by signature for his principal. As far as possession of the house went the defendant had the fixtures, so that having procured the plaintiff's term with his right of removing them to pass away, she affirmed the contract to take them, subject to a valuation. Having been called on by the court to argue whether the action was properly brought on an indebitatus assumpsit, they contended, that though the special contract not to remove the fixtures might have been incomplete till the price was ascertained, it became executed so as to let in the indebitatus count, as soon as that was ascertained by appraisement. Poulter v. Killingbeck (b) is in point, where the plaintiff had verbally agreed with the defendant to let him land rent free, on condition of having a moiety of a crop. While it was on the ground it was appraised for both parties: (a) On the same day on which Boydell v. M'Michael was decided. See 974. (b) 1 Bos, & Pul. 397. HALLEN บ. RUNDER. Held, that the plaintiff might maintain indebitatus assumpsit for a moiety of the value, without stating the special agreement, that having been executed by (Trin. 1834.) the appraisement, and the action having arisen out of something collateral to it. In Salmon v. Watson (a), the agreement was verbal to take a house and purchase the fixtures at a valuation to be made by two brokers. The defendant having taken possession of the fixtures, and paid part of the sum, was held liable for the remainder on the account stated. Had there been no appraisement here, the plaintiff might have recovered on a quantum valebant, as the defendant has had the benefit of the fixtures; Earl Falmouth v. Thomas (b). A count for lands bargained and sold has been usual in practice, where possession of the land has been given. [Parke B. In that case a legal conveyance, passing the land to the defendant, must be shown, and the mere act of taking possession would not be sufficient to support the indebitatus count. Therefore that count, in point of practice, seldom occurs; for as there must be a conveyance to pass the interest, that would in general recite the payment of the purchase money, and contain a release for it.] The test to try whether indebitatus assumpsit is or is not the proper form of action is, whether the contract is executed or not? The acceptance of the key confirmed the contract. Kelly supported the rule. The valuation signed by the broker is not a sufficient memorandum in writing of the bargain to bind the parties within 29 Car. 2. c. 3. s. 17., for the broker's evidence contradicts the presumption of general agency, by proving that his HALLEN บ. RUNDER. (Trin. 1834.) authority extended at the utmost to appraising the fix tures. [Alderson B. Has the statute of frauds any application? Parke B. The general rule is, that chattels, by being affixed to the freehold, become parcel thereof, subject to the right of the tenant, if he purchased or originally affixed them, to remove them altogether, or part with them before the end of the term to any incoming tenant; as well as to the liability of their being seized under a fieri facias against the tenant during the term. Here, the defendant as landlord would have taken the fixtures as part of the freehold, had they not been removed before the end of the tenancy; the agreement conferred on her no interest to take effect in possession before that time; but the plaintiff, the tenant, waived his right to sever them during the term. That has nothing to do with an interest in land, but the question is, whether a special count was not necessary to enforce such a contract of waiver.] In Lee v. Risdon (a), Gibbs C. J. treats the household fixtures there described as parcel of the freehold till severed. Horn v. Baker (b) is to the same effect. The plaintiff, however, can only recover on this declaration, on the ground that these fixtures, by severance from the freehold, become subjects of sale and delivery within 29 Car. 2. c. 3. s. 17. or they fall within section four of that act, as part of the freehold, a note in writing was in this case required. Now, whatever right the tenant has to part with fixtures during his term a special count was required, for the mere contract did not vest them immediately and indefeasibly in the defendant, as the sale and delivery of goods would have done. [Parke B. He might sever them within the term, but if left after it ended, they became the landlord's property, Lyde v. Russell (c).] (a) 7 Taunt. 188. (b) 9 East, 215. (r) 1 B. & Ad. S94 |