018-NLR-NLR-V-07-BRODIE-v.-ATTORNEY–GENERAL.pdf
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BRODIE v. ATTORNEY-GENERAL.
D. C., Colombo, 16,697.
Fixtures—Sale oj land and building—Conveyance without express words as tofixtures—Agreement between agent of the Crown (the purchaser) and theowner of the premises—Conduct of such agent after conclusion of sale.
Fixtures are articles which by being affixed or let into the ground, orannexed or attached to a building, acquire the character of immovables.
Counters, cooking range, water tanks, electric bells, batteries andindicators, baths, lavatory furniture, inquiry office, &c.,- fixed by bolts,screws, and other ways, as described below, are fixtures which, in theabsence of a special agreement, pass with the building.
Where a “ land and building " were put up for sale and purchased bythe Crown through its agent, who some days after the sale was allegedby the owner of the land and building to have agreed with him to takeover certain fixtures therein at a valuation on behalf of the Crown,
Held, that even ifsuchan agreementwereenteredinto,the Crown
could not be made liable to pay for what was already its own.
T
HE plaintiff was the liquidator of the Stations Hotel Com-pany. His cause of action against the Attorney-General
was alleged to be the breach of an agreement entered into be-tween the plaintiff and the Hon. Mr. Wace, acting as Agent of theGovernment of Ceylon, in regard to certain “ furniture andfittings ” which, together with the hotel buildings and land, hadbeen seized by the Fiscal in^-exeeution of two judgments againstthe company.It wasstated that at the Fiscal’ssaleMr. Wace, as
AgentoftheCrown,purchased the buildingsandthe land on
the 7th September, 1903, and that on the 12th and 26th Octoberfollowing agreed withtheplaintiff totakeover at avaluation
certain articles of “ furniture and fittings,” namely, a structure inteakwood, called the inquiry office, fixed in the entrance hall ofthe hotel; a large teak counter called the saloon bar; severalpatent wash basins in the lavatories; several galvanized ironbathsin. thebathrooms; several galvanizedironwater tanks
poisedonteakstandsin the kitchen and bathrooms;electric bells,
batteries, and indicators, &c.
The manner in whichthe articleswerefixedwasdescribed
by Mr. A. Fleming, the Engineer who had supervised the building
of the hotel, as follows.*,
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As regards the “ inquiry office,” he said: “ Eaeh*of its four feetor posts has gone through a tile about 3 inches. That tile wasremoved to put the foot there. To replace thht tile, if the footwere removed, wouldcost 75 cents.Thecrossframe of the
panels of the door is sunk 3 inches into a wooden pillar in a hole
1903.
October 2, 5,
and 30.
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1903.
October 2, 5,
and 30.
about 4 inches square at the surface. It is tongued in. If the1 frame were removed a carpenter in half a day would, at the costof a rupee, plug' up the hole left. At the pillar the panel is letin between two headings screwed on to the pillars. These head-ings would have to be removed and the screw holes pluggedwith putty, which would cost Us. 3. The mouldings on thewalls would also have to be removed at a cost of Rs. 2. It couldbe removed from the hotel, and to do so would cause only slightinjury to the building. Any injury done to the building inremoving the office could be repaired at Rs. 6.75. The injury isonly in appearance, by unsightly marks being left till obliterated.’
As regards the saloon bar counter, he said: “ Each end ofthe counter was placed up against the wall before the wall wasplastered with cement. This was done for appearance’ sake, andnot to give stability to the counter. If it were moved out, therewould be where each end had been a gap in the cement of thewall, say 4 feet long (i.e., the breadth of a table) and 1£ footbroad (for the thickness of it), and also where the front panel hadbeen in like manner let into the wall. These damages to theappearance of the wall could be repaired for Rs. 10. Therewould be no substantial damage to the building. The bottom ofthe bar counter rested on the wooden floor without being attachedto it, nor was the moulding which skirted the base of the counter -fastened to the floor.”
As regards the other counters, he said: “ The long counter inthe kitchen, which cost Rs. 175, was similarly fixed, and could bemoved at about the same cost, and so were the two counters inthe bar and billiard room.”
As regards the electric bell,, battery, and indicator, he said:“ They could be disconnected from the wire and easily removed.After removing them there would be marks in the wall, whichwould cost some Rs. 3 to efface. No injury would be caused tothe building by removing them. Upstairs were larger indicatorswith batteries and bells. They could be removed in the sameway. The forty-five pushers were wqrth about Re. I each, sayRs. 50. They could be easily removed without injury.”
As regards the five water tanks, he said' “ They rest on standsin the kitchens and on each floor. The four tanks on the floor wereall the same. Tne tank in the kitchen stood on a teak frame 10 feet‘high. The stand was ‘against the wall. The outer two legs weresunk about 6 inches in thfe cement and concrete of the floor. Theother two rested on the cement. The frame is bolted to the wallby two bolts, which go through the wall aqd have a screw on theoutside of it. The tank still rests on the frame. The tank and
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stand could be removed by drawing out the bolts and filling upthe holes in the wall and the concrete at a cost of Rs. 8.10. Thelegs of the upstair tanks rested on wooden frames screwed to thefloor. There were two bolts through the lath and plaster wall.Each tank could be removed at a of cost of, sav, Rs. 7.”
As regards the patent wash basins, he said: “ They were fittedinto stands, five of the same pattern; the two in the billiard roomcame out in a cast-iron frame. There was a wall between thegentlemen’s and ladies’ lavatories. The three basins in the latterand the two in the former were in teak frames. There was abracket on either side of the wall supporting the teak shelvesinto which the basins were let, and there was a bolt through thebrackets on each side of the wall and the wall itself. If you re-moved that bolt and disconnected the water service, the teakframework could be taken down, and there would be a hole inthe wall about the size of your finger (f inch) to be filled up.At the back of the wash basins were ornamental tilework, whichwould not necessarily have to be removed. The removal of theteak frames and basins would not cause any injury to thebuilding. The wash basins themselves were of white enamel-ware. The two in the billiard room in iron stands were standingagainst the wall, not fixed to it, save by the connection with thewater service.”
As regards the baths, he said: “There were eleven steel ship’sbaths in the different bath-rooms. Apart from their connectionwith the water service, each bath stood on four iron lion’s feet; twofeet rested on one cement block about 9 inches, which rested onthe cement floor. The blocks were put there to raise the baths,so that the syphon pipes under the.baths might clear the floor;otherwise ahole would have had to becut in the floor.To
prevent thebathsfrom shifting, the feetwerecemented tothe
blocks, so that you could not see the toes of the lion’s feet. Toremove thebathit would be necessaryonlyto uncouplethe
pipes and lift the bath away. It Would chip the cement on theblocks to the value of Re. 1.”
As regard the cooking range he said:“ In the kitchen, was a
large cooking range, which was ejected under my supervision.The cementfloorof the kitchen was finishedbefore tffe strove
was put in there. The stove. had no feet. It was a square one,and rested on the – cement floor. • 'It weighed t about 1$ ton. Itwas not at all fixed to the floor.’ Thefe was a, cement headingall round the bottom abcJut an inch high to keep .out cockroachesand musk rats, as the, stove wa£ not .quite even with the floor.In the middle of the room was a bnci£ chimney with an arch on
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October 2, 6,and 30.
1903.
October 2, S,
and 30.
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either side of it, looking like a central pillar in the kitchen.The iron flue ran from the stove and was let into the brickchimney- To remove the range the floor would not have tobe broken. The heading of cement would have to be removed,and the flue would have to be disconnected from the chim-ney. Then the stove could be taken to pieces and removed, andthere would be no injury to the building beyond the mark onthe floor where the cement heading had been taken and the hole in.the chimney. The chimney and the two arches have .now beentaken away and a joint put across in their place. The stove hasbeen removed into another room—a storeroom. It would costabout Rs. 3 to put that cement on the floor right.”
The defendant denied the agreement alleged.
It appeared from a note made by the officer who held theFiscal’s sale, in the page reserved for “ memoranda 6f bids offered,”that it was ‘‘ agreed that the buildings and land should be put upalone at Rs. 84,500;” that this note was made on the 7thSeptember, 1901, after the conditions of sale, had been read; thatit was signed by the plaintiff and his two execution-creditors;and that Mr. Wace was not a party to this agreement.
At the trial, the plaintiff swore that on the morning of the 7th Sep-tember his Proctor, Mr. Keith, and the Crown Proctor, Mr. Borrett,had a conversation at which he (the plaintiff) was not present;that one or other of them told him in the presence of both of themthat the Government were prepared to offer at the sale Bs. 85,000for the land and building only; and that he agreed to accept thatoffer. The plaintiff then deposed as follows:—‘‘The Fiscal’6sale then proceeded. The Fiscal’s officer put up the building andland at Rs. 84,500. Mr. Borrett bid Bs. 85,000, and it wasknocked down to him.” Immediately under the memorandumof agreement signed as aforesaid by the plaintiff and his execution-creditors appeared the following memorandum:—‘‘ Amount bid:Bs. 85,000. Name of bidder: Mr. Borrett.” This was signed byMr. Wace. The conditions of sale were then completed asfollows:—“ Under the foregoing conditions the property was soldto Mr. H. Percy Borrett, on behalf of the Government of Ceylon.—
(Signed) H. Wace, Government Agent.”
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*'T, tiie undesigned, H. Percy Borrett, acknowledge to havepurchased the land and premises with the building.—^(Signed)
H. Percy Borrett, on (belialf of the Government of Ceylon. ’ ’
c
“ I hereby declare the Government of Ceylon to be the purchaserof the said premises for the sum of Rs. 85,000.—(Signed) R. A. G.Festing.”
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The principal issue which the Court had to try was,' Whatpassed to the Government under the terms “ building and landsand “ lands and premises with the building thereon ”? The words‘‘ land and premises now converted into a hotel and called ‘ TheGrand Hotel, Kandy ’ ” also occurred in the conditions of sale assettled and signed by the Deputy Fiscal. The question fordetermination was, Did the fixtures within the buildings pass tothe Crown or not? If the fixtures passed, to the Government,what were the specific articles which so passed?
Another issue raised in the pleadings was whether there was anagreement entered into on the T2th and 26th October, 1901, betweenthe plaintiff and Mr. Wace, as Agent of the Government, that thearticles mentioned in list A should be taken over by the-Government at a fair valuation.
The learned District Judge (Mr. D. F. Br.owne) found that thearticles mentioned in the list were more or less fixtures; that Mr.Wace did not decline to take them over at a valuation when, someweeks after the sale of the buildings and land, the plaintiff askedhim to do so; and that the plaintiff and Mr. Wace never contem-plated that the articles mentioned in the list would pass with thebuildings and land as fixtures.
The District Judge gave judgment for the plaintiff in the alter-native form prayed,—that the defendant do return the subjects ofthe plaintiff’s claim to him in the condition in which they werewhen removed by Mr. Wace on the 31st October, 1901, and, if theyshall be found to be now deteriorated in condition, do pay thediflerence between their value at' date of return and Ks. 3,290,with legal interest thereon to that date; or, in default ofreturning them, do pay the said' sum of Rs. 3,290 and legalinterest to date of such payment.
The Attorney-General appealed. The argument in appeal tookplace on the 2nd and 5th October, 1903.
Rdmdnathan, S.-G., for appellant.—The findings of the DistrictJudge are not supported by »the evidence on record. A sale ofthe “ land and buildings ” necessarily includes fixtures thereon,and such sale having been already concluded on the 7th September,1903, the subsequent conduct of Mr. ^Vace or the plaintiff ciid notalter the legal effect of that transaction So far as ‘the Crown isconcerned. The evidence recorded shows that’ on the 7th Septem-ber, when the Fiscal’s sale was held, the Government was noparty to any agreement regarding the furniture and fittings; thatMr. Wace, acting for the Government,, bought certain buildingsand lands; that according to law, all fixtures found in the
1903.
October 2,6,and 30»
l
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1903.
October 2,
and 30.
building and described in list A passed to the Government;
’> that more than a month afterwards, to wit, on the 12bLand 26th October, 1901, the plaintiff requested Mr. Wace to takeover certain of the articles included in the list at a valuation;that Mr. Wace declined to give him any answer on that point;and that when the plaintiff wrote to Mr. Wace that he had agreedwith him to take those articles at a valuation, Mr. Wace forwardedthe plaintiff’s letter at once to the Director of Public Works, whowas in charge of the buildings and lands purchased on behalf ofthe Government, and informed that officer that there was no suchagreement arrived at.
As regards the law of the case on the subject of fixtures, theRoman maxim is quicquid plantatur solo, solo cedit; and movablesbecome immovables rations distinctionis, finis, eventus, , usus,relationis ad rem immobilem. (P. Voet, De Beb. mob. et immob.,vol. 1. p. 383). Movables become attached to the realty by being letinto the ground; or united by nails, screws, bolts, mortar, &c., oraffixed to the land in other ways {Dig. 19, 1, 17, §17; 2 Burge,Col. Laws, 15). We must go to the English Law for the law as tostoves, closets,' washstands, kitchen ranges, &c., of the kindused in the hotel, for such articles of furniture were not incommon use among the Romans. The earliest applicable casewas decided in 1823 {Colegrave v. Dias Santos, 2 B. & Cr. 76).In this case, the plaintiff’s house and estate being sold by auction,the defendant became purchaser, and conveyance and possessionwere duly given him. At that time stoves, grates, kitchenranges, closets, shelves, washtubs, &c., remained in the house.The plaintiff afterwards desired that a valuation of them shouldbe made, and that defendant should pay for them in terms ofsuch valuation. The defendant contended that they passed to him .as fixtures. It was held accordingly. The next case -was decidedin 1853 (Wiltshear v. Cottrell, 22 L. •/., Q. B., 117). The Court heldthat a threshing machine fixed by bolts and screws to posts whichwere let into the ground, and which machine could not be got outwithout disturbing the soil, passed under a conveyance of the land.In the case of Walmsley v. Milne {29 L. J. C. P. 97), it was heldthat a steam engine and boilqr with their adjuncts secured by boltsand nuts to the wall, though capable of being removed withoutinjury to the machinery or to the fixtures, passed to the .mortgageeas part of the freehold'. In 1866, in D’Eyncourt v. Gregory (L. R.3, Eq. Cas. 382), it was h£ld that tapestry, pictures in panels, framesfilled with satin and attached to the walls, as also statues, figures,and vases resting in nitches anjl stone garden seats were essen-tially part of the house, whether easily removed or not. In
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hongbottom v. Berry (L. H. 5., Q. B. 123), it was held that allannexures to the floor, ceiling, or sides of a house by means ofbolts and screws are all fixtures which go with the house, and itmakes no difference that such fixtures could be removed withoutinjury to them or to the freehold. In this case the owner of thehouse mortgaged it to A, and then erected a mill driven by steam,power and set up machinery for woollen cloth manufacture. Hesold the machinery to B, who had notice of the mortgage. Itwas held that the machinery, Ac., passed to the mortgagee. In 1872,Holland v. Hodaon (L. R. 7, 0. P. 328) decided that looms attachedby means of nails driven through holes in the feet of the loomsinto the floor, and which nails could be easily drawn and withoutserious damage to the flooring, formed part of the realty. Thelast case on the subject is Hobson v. Corringe (66 L. J. Oh., 114)decided in 1896. It was held there that an engine affixed bymeans of screws and bolts to a concrete bed in freehold ■ landceased to be chattel and became part of the freehold. This caseaffirmed the previous cases cited. It is clear that, according tothese cases, the inquiry office, saloon bar, teak counters, watertanks, baths, electric bells, urinals, washbasins, cooking range,&c., attached by screws and bolts to the hotel, passed to the Crownas fixtures.
H. J. C. Pereira (with him James Pieris), for plaintiff, respon-dent.—Mr. Wace had agreed with the plaintiff to take over thearticles of furniture and fittings at a valuation. Whether fixturesor movables, the parties intended to treat them separately from,the land and buildings which were sold to the Crown on 7thSeptember, 1901. The subsequent acts of the parties naturallyflowed out of the proceedings of the 7th September, and must belooked upon as one transaction (Traps v. Carter, 2 C. R. & M. 153',Ward v. Taylor, 1 L. R. Ch. Div. 523 & 534).
30th October, 1903. Layard, C.J.—(after carefully reviewing
the evidence for the plaintiff and the defendant) observed : —
A comparison of the evidence of the plaintiff and of Mr. Waceleaves me in little doubt that on the two- dates in October theplaintiff saw Mr. Wace and had samp conversation about Govern-ment taking over the inquiry office, counters, -'baths, ahd thelatter, without promising any price, seems to have 'led plaintiff tounderstand that Government would take them at ^ valuation.
I
Mr. Wace’s evidence ,in cross-examination, though generallydenying any promise to purchase tbeta articles, is not verysatisfactory, and the probability certainly seems that he. was not
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October 2,5,and 30,
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1903.
Oetobtr 2, 5,
and 30
Layabd C.J.
aware until informed by Mr. Borrett that these articles had beenincluded in the general purchase of the building, and that he, ifmairing no definite promise, led the plaintiff to believe he wouldtake them at a valuation.
But the materiality of this is not very great, because Mr. Wacewas not a private individual. He was acting solely for theGovernment, and the position of the Government depends onwhat was sold on the 7th September, and not on any casual wordsused by Mr. Wace in ignorance of what actually in point of lawfell within the contract of purchase on the 7th September withreference to the taking over of any fittings.
The rest of plaintiff’s evidence and that of the witness Fleming isas to the value of the alleged fixtures, and there was further evidencethat certain articles were considered as “ furniture and fittings ”in the hotel business. The evidence for the defence is that of theGovernment Agent and the Assistant Government Agent, whodeny any express promise to take over these things, but theevidence of Mr. Festing as to giving permission to let the stoveand billiard table remain in the hotel clearly shows that it was notthen supposed at the Kachcheri that these articles belonged toGovernment by right of their purchase, and a perusal of theirevidence leads to a conviction that Mr. Wace probably regardedthe baths, counters, basins, inquiry office, and stove as still unsoldand the property of the vendors, until he had his- attention calledto the matter by the somewhat arbitrary action of Walker & Co.in seeking to remove the stove. The rest of the evidence for the•defence is as to the value of certain articles claimed.
The documentary evidence I have reviewed. The questiontherefore is simply this:Does a sale of a building under Ceylon
Law pass with it those fittings which are by English Law knownas fixtures, and which pass with a conveyance of the freeholdwithout express words?
If a sale does by our law pass fixtures, then it cannot be seri-ously denied that these articles are fixtures, and indeed nocontrary contention was raised at the bar, and the consequence isthat the appeal must succeed. For if our law recognizes thedoctrine of fixtures, no words used in a general way by Mr. Waceas to *Government -taking over any of these things could possiblyrender the Government ‘ liable in any way to pay for _ what wasalready its own, although the Government Agasi may not haveknown it, and of bourse* there could be no liability for. wrongfullydetaining what was the Government’s own.
In my view the matter is no$ .affected hy the Government beingthe purchaser, and not, say, the Bristol Hotel, to take the case
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imagined by the learned District Judge. There might have been 1903.several bidders at the sale, one representing, say, the Bristol Hotel.s.
Supposing this gentleman had bid Bs. 5,000 above Mr. Borrett’s
bid of Es. 85,000, could it be said that he was bidding for onec j-
thing, viz., the building plus all that would be useful to a HotelsCompany, while Mr. Borrett was bidding for the building plusonly what would be useful to Government? Two bidden at oneauction bidding against one another for substantially differentthings?
The question solely is, What passes under a Fiscal’s sale purport-ing to be “of a building and lands only excluding “ thefurniture? ” The District Judge has found that the inquiry officewas part of the building itself, and the other things claimed bythe plaintiff were fixtures such as a tenant might remove againsthis landlord. The question here, however, is not one between •landlord and tenant, but between vendor and vendee. Our lawis that houses and other buildings erected on land are immovablecorporeal things, and would pass by a sale of the land to thepurchaser. Moveables affixed or let into the ground or annexedto or attached to a building are immovables. They acquire thequality of immovables by reason not alone of their being affixed,but of their being affixed with the intention of permanentlyremaining. Thus, movables if fixed by the owner become im-movables, thoughthis wouldnotapply if affixed bya tenant
merely for thepurposeofhistenancy. Yoet (19.2.14),
clearly establishes the right of the tenant to remove fixtureswhich he has made at his own cost. For Voet says by the actioconducti the lessor may be sued to remove doors and other thingswhich the tenant has made at his own cost, so far as they can beremoved without detriment to the subject hired. I cannot findany provisions of our law which enables a vendor to removefrom a house sold by him anything affixed to the building whichis intended for the, permanent use of the building and, as it werea part of it. I understand Voet to lay down in 19. 1. 5, thatwhen a house orbuildingissold, all things which were affixed
to such house orbuildingi>ythevendor prior to suchsale and
intended to be used in respect of such house or building must bedelivered with the house or building as accessories thereof. Thefixtures in this case, I hold, passed with, the buil&jng, there beingno explicit undertaking that they were to be excluded.,
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Respondent’s counsel argued, because he Hotels Company intheir boobs and balance sheet classifier. the fixtures under adifferent heading to “ land and buildings*', and because it was provedthat certain hotel eompanitojame, that when an hotel
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1903.
October 2, 6,
and 30.
Layabd, C.J.
building is sold without the furniture the fixtures do not passunder such a sale. It appears to me that there are good reasonsfor hotel companies keeping such items separate in their accounts,and Mr. Link’s evidence discloses that it is done for the purposeof writing off depreciation. The fixtures would most undoubtedlydepreciate more quickly than the framework of the buildings,and consequently it is right that they should be classified under adifferent head in their books and accounts. There is, however,no evidence in this case to show that when a building used as anhotel is put up for sale there is any custom having the force oflaw which overrides the general principle of our Common Lawthat fixtures attached to the building pass with it to the vendeeon the completion of the sale.
The defendant’s appeal must succeed, and the plaintiff’s actionhe dismissed with costs in both courts.
Wendt, J.—
Respondent’s counsel was constrained to admit at the argumentbefore us that in the absence of express agreement excludingthem the articles would pass with a sale of the land and buildings.The admission is fully. justified because those articles belongedto the proprietors of the soil and were by them affixed to thebuildings for permanent use therewith. No such considerationstherefore apply as are material where the question arises betweenlandlord and tenant.
The question then is whether the terms and conditions of salewere such as to exclude the property in claim. I agree with theChief Justice in thinking that they were not. The conditions ofsale were drawn up so as to include in one lot the land (made upof six allotments) and “ all the stock-in-trade, plant, furniture,’crockery, cutlery, plate, linen, glass, china, pictures, goods, wares,billiard tables, with all and singular the fittings and appurte-nances thereof, and all other goods, effects and things, live anddead stock, and all movable property now lying and being in,and about the said Grand Hotel, Kandy, and all other stock,plant, goods, wares, live and dead stock, and all other effectsand fittings and things of *hat kind or nature soever, nothingexcepted, whicji* shall he in or about the said Grand Hotelpremises. ” Nothing js expressly said about “ fixtures. Beforethe sale commenced it i^ recorded. on the conditions that it was“ agreed by the plaintiffs that the building and lands shall be putup alone at Rs. 84,500; ” and after the memorandum of bids, andtherefore probably after the hammer fell,'is this record:The
plaintiffs are agreed that the sale of the furniture shall be stayed.
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defendant consenting. ” So that, if we look at the wntten 1903.conditions alone, we have on the one hand the sale earned out of October 2, 5,the “ building and lands, ” and on the other the postponement ofthe sale of the “ furniture ” as apparently all that was left out of Wendt, J.the whole property, which, besides the building and land andfurniture, comprised “ plant ” and “ fittings. ” X do not think thearticles in question could fairly be brought within the descriptionof “ furniture. ” They are more in the nature of “ fittings, ” whichwere not expressly excluded or their sale deferred.
So far as regards the parol evidence, I concur in the reasonswhich the Chief Justice has given for considering, it inconclusive,and therefore I also agree that the appeal should be allowed.