Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-03-26
Performance OF n contr,ct.


WIN tho question OF the specific per
ioimnnce OF contract. The decision
was prepared by Judge Harrison and
me uccree OF tho Corporation Court OF
the city Of Alexandra Is affirmed The
case camo 20 the Court Of Appeals ap-
parenily upon the grounds that the bin
was muliifaiioEs. ana that the demurrer
thereto was improperly ovcrrulod. The
Court of Appeals holds that both these
arc fdilacious grounds u appears that
the wood vulcanizing concern bought
unucr contract OF the Cleveland concern
certain machinery, 20 be equal TO n
certain standard. which the plaintiff
contended did not come up 10 the terms
o. the contract. The Cleveland Com
pany attempted 20 seize it's machinery
On July 81. 1880. the vucanizing com.
pany gave n trust decd upon the pro-
pcrty 20 secure a note executed May
-, 1879 for money borrowed by the APP
pcllani on that day.
The court holds that the deed. being
given 10 secure debt existing prior 10
the date Of the creation Of the lien.
comes plainly within the terms OF the
statute and inurcs 10 tho benefit Of all
the creditors existing at its date. Tho
opinion goes on further 10 state that
all the evidence adduced was 10
the eject that the contract was SUBJ
stantally, and in good faith. completed
by the appellee Appellee recorded and
perfected its mechanics lien within the
time prescribed by law, and that under
Section 2i75 Of the Code. appellee had
the right TO take out the lien, and IS
entitled TO its benefits. The contention
that the work done and machinery fsr-
nished by appellee is not permanently
annexed to the freehold. and does not
constitute part thereof, Judge buchanan
says is not tenable.
Continuing the opinion says: 1.-THE
true rule for determining when the na-
chinery and apparatus OF factory
forms a part OF the realty . IS that
where the machinery is permanent in
its character, and essential 70 the pur-
poses for which the building IS occupied.
1t must be regarded as realty, and passes
with the building: and that whatever
IS essential TO the purposes for which
the building is used will be considered
q part thereof although the connection
between them is such that II may be
severed without physical or lasting IN
jury to either" Green VS.. Phillips, y
Grattan, 1872 and other authorities are
cited) Applying this rule to the case
at bar. il is clear that the machinery
furnished by the appellee constitutes
part Of the realty, says the court and
forms the most important part Of the
structure in question.
NO VALID OBJECTION.
The court further takes the position
that there could be no valid objection
to the decree Of sale. Its effect was
not. as contendcd, to give the appenVe
a preferred lien upon all the property
of the defendant, but only upon That
norton Of It to which the mechanics
lien rightfuly attached. and lien TO-
gether with the other creditors upon the
property conveyed in the deed OF trust
of July q. 1893 The court also states
that il was likewise proper TO sell the
property i'm two parcels, that upon Which
the aDpellee's preferred mechanics hen
rested i'm one parcel, and that covered
bv the deed of July 81. 1898, in another.
AS before stated, the decree of the lower
court Is affirmed.
suit over Church Work.
Judge Cardwell prepared the opinion
in the case Of the Chesapeake Cfassl-
fed Building Association against Cole
man q Sans, trustees. from the Circuit
Court Of Norfolk county. The appellate
court. after holding that the demurrer
to the bill in this case was properly over
ruled. saws il seems well settled that, IN
order 10 constitute a valid assignment IN
equity an that is necessary Is an order
from the person TO whom the money Is
dua or coming on the person in whose
hands or under whose control il may be
to pay TO the payee. and that the draWee
should have notice of the order. (BrooNs
VS.. Hatch. 6 Leigh, OIL, etc) Inc case
involved the payment of the balance Que
TO Coleman & Sans, as trustees for Bal
lance &. Jones. sub-contractors, upon the
African Methodist Episcopal church. OF
Berkeley Va Through certain transac-
tons with the Building and Loan AS
sociation. John w Tillett subscribed TO
81 600 worth Of stock Of the association
to pay off claim of John w. Jones. gene
raj contractor. who was by agreement
to effect a release of Balance 81 Jones's
right TO docket a mechanics lien on the
church property. John w. Jones was
paid over 5000 by the association. ana
out Of this paid Coleman & Sans trus-
tees. $500 of the 81 1888 due to Balance
& Jones. giving an order upon the Build
ing and Loan Association for the re-
mainder. The association contended than
it never agreed to lend but 5000 and
hence the suit The Court Of Appeals
holds that in view of all the lights and
circumstances. this order operated as an
equitable assignment of such fund, and
that the complainants recover and have
execution against the defendants-JOhn
w Jones. George r. Tilley. and the
Chesapeake Classified Building and
Loan Association 90 for SOD with
interest thereon from November
30. 1896 until paid. and their
costs. and that they further recover and
have execution against the defendant
John w. Jones, for the sum Of S953
with interest thereon from November 80
1872. till paid. The decree Of the lower
court is without error and is affirmed
The case of Pettus against the Atlantic
Savings and Loan Association which
came from the Hastings Court of the
CITY OF Roanoke. was also decided yeSter-
day. Judge Keith preparing the opinion
This dealt with the substitution of
new trustee. in the place Of one disquah-
fed TO serve The action Of the lower
court was affirmed.
Other business Transacted
other business transacted by the court
was as follows
Bumgardner and others VS.. Hammond
Company. From the Circuit
Court of Wythe county. writ or error
refused
FERRY AGAINST city Of Richmond. Fur
thor argued by H. r. Pollard. ESD Tor
riointiff i'm error. and submitted.
richmond Locomotive and Machine
v'crks VS.. Ford. Argued by j. Aston
Caben. Esq. for PLAINTIFF in error. and
charles Y. Meredith, Esq, for defendant
I'm error. and continued until to-mor-
The next case TO be called is Taylor
VS.. Mahoney. No. %.
q I'D