(Minn.

Appellant insists that these statements rose, addressed to the defendant's district are false. This the plaintiff denies. trial court instructed the jury that such on. Defendant denies that such notice was The agent in St. Paul, with postage paid thererepresentations were material to the right of ever received. Where a letter is deposited the plaintiff to recover, and left it to them in the mail, postage paid and properly adto say whether they were false, and that, dressed, there is a strong presumption that if they were, plaintiff could not recover. it reached its destination in due course of The burden was upon defendant to show that mail. Ruder v. Nat. Council, etc., 124 Minn. they were not true. The evidence sustains 431, 145 N. W. 118. Applying this presumpthe finding of the jury. Ziegler was less tion, the jury was justified in finding that than 20 years of age, and had made his the letter was mailed and that the notice home with his mother. She was assisting was received. him in removing the window, and testified as to the manner of his fall and injury; that to furnish affirmative proof of loss to the [3] 3. It is claimed that the plaintiff failed he had always had good health, had never company within 90 days after death. The been sick, and had never had an accident policy provides that such proof be furnishthat she knew of. In this she was cor- ed. The plaintiff claims that she furnished roborated by the testimony of her husband. such proof in the form of a verified stateTo establish the falsity of these statements ment, which her attorneys made in duplidefendant offered the testimony of several cate; that she mailed the original thereof witnesses. The witness Keppers testified to the company in New York, and a carbon that Ziegler worked under him for a week copy to its agent in St. Paul, on September in March, 1918, that he saw him take medi- 30, 1918. This notice was offered in evicine from a bottle, and that Ziegler told dence and received without objection. It him he had a touch of pneumonia the winter was signed and verified by the plaintiff and before. Bartell testified that Ziegler work- contained the following statement: ed with him in April and May, 1918, that they bunked in the same car, that Ziegler did not seem very lively, and that his kidneys seemed to bother him. Branley testified that Ziegler told him that in the fall of 1916, or the winter of 1917, when he was using an iron crowbar, it slipped and injured him, so that he had to lay off for a day or two. All of this testimony may have been true, and yet the statements in the policy not false. Nor does the opinion testimony given by Dr. Goehrs change the situation. Whether such statements

were

false or true was clearly for the jury under the testimony.

[2] 2. The policy provides that written notice of injury must be given to the company within 20 days after the date of the accident; that notice given to the company at its home office, or to any authorized agent, with particulars sufficient to identify the insured, shall be deemed notice to the com

person on the 12th day of May, 1918, by ac"Ziegler received injuries to his body and cidental means, from which said injuries he died, on the 2d day of July, 1918."

signed by the plaintiff, which was offered Accompanying this notice was a letter, in evidence and received under objection, which it is insisted was error. made reference to the notice which the This letter plaintiff claims she mailed to the defendant on July 11th, the carbon of which discloses that it contained the same statement contained in the notice of September 30th. While the letter offered might have been objectionable from a technical standpoint, we are unable to discover anything therein prejudicial to the rights of the defendant therein were consistent with the contentions made on behalf of the plaintiff as to what under the proofs offered. The references had occurred with reference to notice prior to the writing of such letter. Stamped upon the policy appears the following:

policy. Notify Andrew Lilley, District Agent, "Notice in case of disability covered by this 517 Pioneer Building, St. Paul, Minn."

pany. Failure to give such notice within the time provided shall not invalidate any claim, if it shall be shown not to have been reasonably possible to give such notice, and that it was given as soon as was reasonably possible. The plaintiff claims that she had no knowledge that her son held this policy until June 27th, and that she wrote a letter on July 10th, as soon as she returned from the funeral and had sufficiently recovered. It is admitted that this letter was received, but it is claimed by the company that it was not sufficient, in that it did not state that death was the result of an accident. The plaintiff testified that on July 11th her attorney drew up a notice of death by accident, a carbon copy of which against bodily injury through external and [4] 4. The policy, by its terms, insured was put in evidence, and that she mailed the accidental means resulting directly, indeoriginal thereof in the post office at Mel-pendently, and exclusively of all other caus

in sufficient time to have reached the agent The notice mailed on September 30th was at St. Paul in the usual course of mail within 90 days after the date of death. If the notice of July 11th was mailed as claimed, that notice would have been sufficient. The question of notice was carefully, and we think correctly, submitted to the jury by the trial court, and the verdict in this respect was supported by the evidence.

(175 N.W.)

An article annexed to the freehold but which can be removed without substantial injury to the realty may remain a chattel if the circumstances show that such was the inten

tion.

APARTMENT BUILDING BY HOLDER OF GROUND
LEASE.

Where the holder of a ground lease erects an apartment building and installs a gas range and a door bed in each flat and thereafter forfeits his lease, these articles will pass as fixof third parties are infringed and there be no tures to the owner of the realty if no rights agreement to the contrary.

es in total disability or death. According to [2. FIXTURES 4-INTENT TO REMOVE CHATthe plaintiff's theory, the accident occurred TEL. on May 12, 1918. The plaintiff and her husband both testified that the young man, prior to that time, was strong and active, and that he had never been sick. Dr. Campbell, the family physician, testified that he had known the young man for 8 or 9 years; 3. FIXTURES 17-ARTICLES INSTALLED IN that he prescribed for him in April and May subsequent to the issuance of the policy in question for a slight cold, which had nothing to do with his death, and that at that time he was strong and healthy; that he treated the boy from June 23d to the time of his death; that the cause of his death was peritonitis, resulting from his fall and injury on the ladder; that he examined the discharge from the injured parts under a microscope, and there was no tuberculosis about it. Dr. Boehm testified that he had listened to the testimony upon the trial as to the accident and alleged injury of the deceased on May 12th, and, assuming the same to be true, it was his opinion that the trouble was due to the injury received on the ladder, and that peritonitis was the cause of death.

Dr. Goehrs, called by the defendant, testified that the young man came to his office in the latter part of May, 1918; that he examined his person, and that he told the patient that it was absolutely a surgical case, and that unless something was done it would lead to something serious; that the boy went away, and he never saw him afterwards. The doctor further testified that he had heard all of the testimony upon the trial, and that, assuming it to be true as to the boy's previous condition, it was his opinion that the cause of death was tuberculosis; that the accident had nothing to do with it, and that the tubercular condition had existed for several months at least. Dr. Dunn's testimony was in corroboration of that of Dr. Goehrs as to the cause of death. There was no other medical testimony in the case.

We think that the cause of Ziegler's death, under the evidence, was a question of fact for the jury, and that the verdict is sustained by the proofs. We find no reversible error in the rulings upon the admissibility of evidence, nor in the charge of the court, when considered as a whole.

Affirmed.

HANSON v. VOSE et al. (No. 21450.) (Supreme Court of Minnesota. Dec. 12, 1919.)

(Syllabus by the Court.)

1. FIXTURES 1-ANNEXATION TO FREEHOLD. A chattel does not become a fixture unless physically or constructively annexed to the freehold.

4. FIXTURES 17-ARTICLES INSTALLED IN

APARTMENT BUILDING BY TENANTS.

As against third parties having rights in these ranges and beds, the landowner is in substantially the same position as a prior mortgagee of the land.

5. FIXTURES 17-RIGHTS OF THIRD PAR

TIES AS AGAINST OWNER OF ARTICLES IN-
STALLED IN APARTMENT BY LESSEE.

Where the holder of the ground lease purchased these ranges and beds under a conditional contract of sale by which title and right of removal remained in the vendors and after rights in them to a third party, not concerned defaulting in his payments transferred all his in the real estate, whom the vendors accepted as the purchaser in his stead, he never had the right to make them a part of the realty and such third party is entitled to them as against the landowner.

6. FIXTURES 32-REMOVAL BY TENANT.

The rule requiring a tenant to remove his removable fixtures at or before the end of his term does not apply to a person in the position of such third party.

To become a "fixture," the article must be physically or constructively attached to the freehold, and if not attached thereto, and not an essential or component part of some structure or appliance which is attached to it, the article remains a chattel, although intended for permanent use on the premises.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fixture.] 8. FIXTURES 7-ANNEXATION TO FREEHOLD.

If annexed to the freehold, the manner in which an article is annexed may convert it into realty, regardless of other considerations; but usually the manner of annexation is not decisive, but only one of several facts to be considered in determining whether the article has become realty or remains personalty as between the parties concerned.

Appeal from District Court, Hennepin
County; Daniel Fish, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
175 N.W.-8

Replevin by H. Stanley Hanson against as they accrued until the amounts unpaid Florence H. Vose and others. Directed ver- were reduced to the sums of $35 and $20 dict for defendants, and from an order deny-respectively.

ing a new trial plaintiff appeals. Order re- In the meantime defendant had canceled versed. Falk's ground lease of the land for nonpay

George S. Grimes, of Minneapolis, for ap-ment of rent and took possession of the buildpellant.

(175 N.W.)

far as annexation is concerned they are in about the same situation as the radiators and office desk held to be fixtures as between mortgagor and mortgagee in Capehart v. Foster, 61 Minn. 132, 63 N. W. 257, 52 Am. St. Rep. 582.

cannot hold as a part of the realty articles annexed to it by the mortgagor but to which the mortgagor never acquired title. Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655.

In Medicke v. Sauer, 61 Minn. 15, 63 N. W. 110, trade fixtures purchased under a conditional contract of sale were installed by the vendee in a leased building and were subsequently surrendered with the building to the landlord who thereafter claimed them as part of the realty and leased the building with the fixtures therein to other parties. It was held that the landlord had no better title to the fixtures than the vendee in the conditional contract of sale, and that the vendor was entitled to recover their value from him on his refusal to surrender them.

In Northwestern Mutual Life Insurance Co.

a refrigerating plant purchased under a conditional contract of sale was installed in a cold storage warehouse owned and operated by the vendee. The action was between an assignee of the vendor and the holder of a mortgage on the realty executed and recorded prior to the installation of the refrigerating plant. It was held that the vendee had no conveyable title in the refrigerating plant which he could vest in another so as to defeat the rights of the vendor, and that the vendor was entitled to the property as against the mortgagee of the real estate.

Falk took possession of the land as lessee for a term of one hundred years under a lease which required him to erect an apartment building, divide it into flats and fit them ready to rent. In completing the building he placed a gas range and door bed in each flat for the use of those who should rent the flats. These articles were adapted to the purpose for which the building was constructed, and enhanced its rental value, and were intended to be rented with the flats as a part thereof. Under such circumstances Falk's position was different from that of an ordinary tenant who rents a building and in-v. George, 77 Minn. 319, 97 N. W. 1028, 1064, stalls conveniences therein for his own use, and these articles would clearly be fixtures as between him and defendant if no rights of third parties were involved. But Falk purchased these articles under a conditional sale contract by which they were to remain chattels with the title and right of removal in the vendors. They never became Falk's property and he never acquired the right to make them a part of the realty. He defaulted in the stipulated payments and when the vendors were about to retake their property, he made an agreement with the vendors and the plaintiff by which the plaintiff was substituted in his stead as purchaser and was to become the owner of these articles on completing the payments as provided in the contracts. Plaintiff had no interest in the real estate either as tenant or otherwise; neither had Chesnut for whose benefit plaintiff seems to have taken over the contracts. Plaintiff dealt with these articles as chattels, and intended that they should remain chattels. This clearly appears from the fact that if they became a part of the realty in which he had no interest, he would acquire nothing by his payments and would be unable to carry out his contract with Chesnut. He clearly had the right as against Falk to remove these articles from the building, and the question here is whether he also had that right as against defendant.

The rule that articles so annexed to the freehold as to appear to be fixtures pass to a subsequent purchaser who buys the land, without notice of the rights of third parties in such articles, does not aid 'defendant, for she is not a subsequent purchaser, but acquired all her rights in the land before the articles in controversy were annexed to it. As against plaintiff, she is in substantially the same position as a subsequent purchaser with notice of his rights, and has no better claim to these articles than a prior mortgagee of the realty would have. Such a mortgagee

In Merchants' National Bank v. Stanton, 55 Minn. 211, 56 N. W. 821, 43 Am. St. Rep. 491, an oatmeal mill was erected and equipped with appropriate machinery by one Dcbson on land belonging to Stanton and in which Dobson had no interest other than that of a mere licensee. The court said that in the absence of an agreement to the contrary the building and machinery would become a part of the realty; that having been placed on the land with Stanton's permission they were personal property as between him and Dobson; and that the plaintiff, claiming under a mortgage of the real estate executed by Stanton prior to the erection of the mill, had "no better or greater right to these annexations than Stanton would have."

In Pioneer Savings & Loan Co. v. Fuller, 57 Minn. 60, 58 N. W. 831, the owner of a lot with an uncompleted dwelling house thereon mortgaged it under a promise to complete the building and, among other things, agreed to complete the fireplace by putting in a mantle, grate and tiling. Instead of doing so, he leased the building under an agreement by which the tenant installed the mantel, grate and tiling with the right to remove them. It was held, following Merchant's National Bank v. Stanton, supra, that, although the mortgagee was not a party to the agreement with the tenant and these articleswould be a part of the realty except for that

agreement, the tenant had the right to remove them.

O'REILLY v. POWERS MERCANTILE CO. et al. (No. 21374.)

In Pabst v. Ferch, 126 Minn. 58, 147'N. W. 714, L. R. A. 1915E, 822, it was held in effect (Supreme Court of Minnesota. Dec. 12, 1919.) that a purchaser of real estate without notice of the rights of third parties in articles which appear to be fixtures is entitled to such arti

(Syllabus by the Court.)

VERDICT JUSTIFIED BY EVIDENCE.

cles as a part of the realty, but that a pur- MASTER AND SERVANT 286(40)-DIRECTED chaser with notice of the rights of third parties is not entitled to them as against such third party.

The question as to whether the holder of a chattel mortgage on an article annexed to the freehold is entitled to such article as against the owner of the real estate, or the holder of a mortgage or other lien thereon, has been answered in favor of the holder of the chattel mortgage by several courts. Edwards & Bradford Lumber Co. v. Rank, 57 Neb. 323, 77 N. W. 765, 73 Am. St. Rep. 514; Ames v. Trenton Brewing Co., 56 N. J. Eq. 309, 38 Atl. 858; Sisson v. Hibbard, 75 N. Y. 542; Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899; Sword v. Low, 122 Ill. 487, 13 N. E. 826; Hewitt v. General Electric Co., 164 Ill. 420, 45 N. E. 725; Belvin v. Raleigh Paper Co., 123 N. C. 138, 31 S. E. 655.

The case of Best Mfg. Co. v. Cohn, 3 Cal. App. 657, 86 Pac. 829, is much like the present case in its facts. There the lessee under a lease which provided for the construction of a mining plant equipped with machinery, and that the land with all improvements thereon should revert to the lessor if the lease should be forfeited for breach of its covenants, purchased the machinery under a conditional contract of sale and annexed it to the realty. | He forfeited his lease and failed to pay for the machinery. The lessor took possession of the land and also of the machinery claiming it as a part of the realty. It was held that the vendor of the machinery was entitled to it as against the lessor of the real estate. See, to the same effect, Wetherill v. Gallagher, 217 Pa. 635, 66 Atl. 849.

As already stated defendant occupied no better position in respect to the articles in controversy than a subsequent purchaser of the real estate with notice, or the holder of a prior mortgage on it, and we have reached the conclusion that she was not entitled to them as against plaintiff and that plaintiff had the right to remove them.

[6] The rule requiring a tenant to remove what are frequently termed removable fixtures at or before the end of his term does not apply where the duration of the term is uncertain, Ray v. Young, 160 Iowa, 613, 142 N. W. 393, 46 L. R. A. (N. S.) 947, Ann. Cas. 1915D, 258, and note attached to the L. R. A. (N. S.) report; nor to a person in the position of the plaintiff herein, Medicke v. Sauer, 61 Minn. 15, 63 N. W. 110.

The order appealed from is reversed.

In an action against an employer to recover damages for illness claimed to have been caused by inhaling disease germs, while at work in a room where fur garments were stored, as the result of the alleged negligence of the master in failing to notify the plaintiff of the dangerous condition of such room, held, that the court was justified, under the evidence, in directing a verdict for the defendant.

Appeal from District Court, Hennepin County; Daniel Fish, Judge.

Action by John P. O'Reilly against the Powers Mercantile Company, the Ernest M. Ganley Company, Incorporated, and others. Directed verdict for defendants, and from an order denying his motion for a new trial as to the defendant Ernest M. Ganley Company, plaintiff appeals. Affirmed.

George R. Smith, H. Stanley Hanson, and Leo J. Gleason, all of Minneapolis, for appellant.

K. A. Campbell and B. Burness, both of Minneapolis, for respondents.

The defendant Powers Mercantile Company owned a four-story building fronting on Fifth street in the city of Minneapolis, in which it conducted a department store. The Ganley Company is a corporation engaged in the repair of buildings in and about that city.

The Powers Company employed the respondent to make certain changes and repairs in its store, and on April 22, 1918, respondent undertook the relining of a room, located in the center of the fourth floor of the store with ordinary tar paper. This room was approximately 14 by 16 feet, with a 7-foot 9-inch ceiling, and had existed and been used since 1916 as a place to store furs and fur garments received for that purpose from customers. It was sealed up tight and lined with two thicknesses of paper nailed onto the wall. The only openings into the room were two doors, one of which was kept closed.

The respondent directed the plaintiff and one Davies, carpenters in its employ, to re

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