Conversion, Recoupment of damages. Fixtures. Damages, Remoteness. In an action of tort for the conversion of articles of plumbing taken from an unfinished house of the plaintiff by a plumber on the failure of the contractor who employed him, it appeared that, after work upon the house had been abandoned by the contractor, the plaintiff caused the house to be completed, and that $1,500 of the contract price had not been paid by the plaintiff to the contractor. The defendant offered to show, that all the cost of plumbing work done under the plaintiff's direction after he took possession, including the replacing of the articles removed by the defendant, was paid for out of this $1,500. The evidence was excluded. The defendant contended that the plaintiff by the application of the $1,500 to the plumbing had recouped his damage from the contractor and could not recover it again. Held, that the evidence rightly was excluded. The $1,500 belonged to the plaintiff and not to the contractor and its application to one purpose or another was immaterial.
Where, as part of the construction of a new house, articles of plumbing are affixed to the structure by a plumber, under a contract to put in the plumbing, they become a part of the realty and cannot be removed by the plumber on the failure of the contractor who employed him.
In an action of tort for the conversion of articles of plumbing taken from a house, which is in process of erection for the purpose of letting it to tenants, the plaintiff may recover the rental value of the house during any period of delay which was caused by the acts of the defendant.
BARKER, J.
The plaintiff let the erection of a house upon his land to a contractor who became insolvent and did not complete the house. The defendants were engaged to do the plumbing, by the contractor, and at the time of his failure had put much of the plumbing in place, and had in the house the material for its completion. Thereafter, against the plaintiff's objection they took out from the house their material which had not been attached, and much of the plumbing which had been set, leaving only that part of it which was enclosed by the walls, ceilings and floors of the house and could not be removed without substantial injury to the building.
The suit was referred to an auditor, and after the coming in of his report was heard by a justice who found for the plaintiff, assessing damages in the sum of $262 with interest. The case is here upon the defendants' exceptions to the exclusion of evidence and to rulings given and refused.
It appeared that the plaintiff caused the house to be completed after work upon it was abandoned by the contractor, and that $1,500 of the contract price had not been paid by the plaintiff to the contractor. The defendants offered to show that all the expenses of plumbing work done under the plaintiff's direction after he took possession, including the replacing of articles removed by the defendants, were paid out of the $1,500. The exception to the exclusion of evidence was to the exclusion of this offer, the court ruling that the evidence was immaterial.
In support of the exception the defendants contend that if the cost of replacing the articles wrongly removed was paid out of the $1,500 it was in effect a recoupment by the plaintiff of the expense of completing the plumbing, and so the pursuit by him of another remedy than that in tort against the defendants to the full satisfaction of his claim, and a bar to this action.
There is no merit in the contention. The $1,500 was not the property of the contractor or of his sub-contractors. Its application for one purpose or another was immaterial to the action and the evidence was rejected properly.
The court ruled in favor of the defendants that the delivery of material upon the premises by the defendants did not pass the title in it to the plaintiff, but ruled, against the defendants' contention that the articles of plumbing became part of the realty as soon as they were affixed to the house.
These questions are raised by the exceptions as to rulings given and refused.
The first is whether the articles of plumbing became part of the realty, and so property of the plaintiff as soon as they were affixed to the house. There was but one inference from the evidence, and it was a necessary one, that when as part of the construction of a new house articles of plumbing were affixed to the structure by a plumber under a contract to put in the plumbing, it was the intention of all parties to the transaction that they should become a part of the realty as they should be affixed permanently to the structure.
The second is that the defendants had a right to remove the plumbing because of the failure of the contractor. But no reservation of any such right by the defendants is shown. Even if the contractor had been the owner of the land, no such right would have existed. Whether the contractor was insolvent when he hired the defendants was a question of fact upon which there is no finding in their favor; but whether it were so or not nothing is shown to justify a contention that plumbing set in a house under construction by one who had agreed to do that part of the work of building could be removed by the plumber upon failure of the owner or contractor to pay for the work.
The other question is as to the measure of damages. There was evidence tending to show that the house was erected to be let to tenants, and that it was to be ready for occupancy on August first and was not in fact ready until September first. The presiding judge ruled that the plaintiff could recover for the rental value of the house for such period as its occupancy was delayed by the acts of the defendants.
The defendants contend that because other items of the work than the plumbing remained unfinished the loss of rent was not caused solely by their act in removing the plumbing, but by delay in other work consequent upon the failure of the employer, and so cannot be recovered of them. The answer is that this was a question of fact with which we have no concern. The ruling was merely that the defendants were answerable for delay caused by their acts. The injury for which allowance in damages was made under the ruling was a natural and direct consequence of the defendants' acts.
Upon this branch of the case the defendants' brief assumes that a ruling was given which the bill of exceptions says was refused, and also that a ruling was given of which the bill contains no statement. We do not know from the bill how the court proceeded in assessing damages, except as indicated in the ruling that the plaintiff could recover for damage to wood work and for delaying the occupancy of the house by tenants. These items taken together at the amounts claimed by the plaintiff were much more than the finding and it must be assumed that in making his assessment the presiding judge proceeded according to law the contrary not being shown.
Exceptions overruled.