New England Box Co. v. C&R Const. Co.

• Decision Date: 03 May 1943
• Parties: NEW ENGLAND BOX CO. v. C & R CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 696

49 N.E.2d 121

NEW ENGLAND BOX CO.

v.C & R CONST. CO.

Supreme Judicial Court of Massachusetts, Franklin.

May 3, 1943.

Report from Superior Court, Franklin County; Donahue, Judge.

Action of tort by the New England Box Company against the C & R Construction Company for damages for the destruction of lumber by fire. The trial judge directed a verdict for defendant and reported the case to the Supreme Judicial Court.

New trial ordered.

Before FIELD, C. J., and LUMMUS, QUA, COX, and RONAN, JJ.

G. B. Rowell, of Boston, and T. A. Scriven, of Lynn, for plaintiff.

G. A. McLaughlin and E. A. Counihan, Jr., both of Boston, for defendant.

COX, Justice.

The defendant in this case is the same as in Hanifin v. C & R Construction Co., 313 Mass. 651, 48 N.E.2d 913. The same contract between the defendant and the Commonwealth that is referred to in that case is here involved. Lumber, in each case, was destroyed by a separate fire. All the lumber that was destroyed was purchased as standing timber by several bills of sale from the Commonwealth, acting through the metropolitan district water supply commission, hereinafter referred to as the commission, by Hanifin, who sold to the plaintiff here, the lumber cut under one of these bills of sale. The questions of law, however, that are here involved are very different from those in the Hanifin case.

The contract between Hanifin and the Commonwealth provided that all standing wood and timber, at the Quabbin reservoir, on the area therein described was to be cut and removed from ‘said area’ on or before July 15, 1938, and that any and all ‘cut wood and timber remaining on said area’ after that date ‘shall be deemed abandoned and become the property of the Commonwealth. All cut timber and hardwood is to be stacked upon such area as may be designated by the Commission and where it will not interfere with any operation of the Commission, and to be removed therefrom on or before December 1, 1938, and any and all cut wood and lumber remaining on said premises after that date shall be deemed abandoned and become the property of the Commonwealth.’ All of the lumber referred to in Hanifin's contract with the Commonwealth had been cut on or before July 15, 1938, and piled above the ‘flow line,’ so called, at a place designated by an agent of the commission, where it remained until destroyed by fire on July 26, 1939, except such as had been removed by the plaintiff. The defendant's contract with the Commonwealth, deated October 25, 1938, required it to clear certain specified areas at the Quabbin reservoir, including the burning of slash and other debris. In this contract the ‘flow line’ is designated. The record in the case at bar discloses merely that the lumber was destroyed by fire. The circumstances in which the fire occurred do not appear. It is apparent that the lumber that was destroyed by fire on July 26, 1939, had not been removed from the place where it was stored on or before December 1, 1938, the date after which ‘all cut wood and lumber remaining on said premises * * * shall be deemed abandoned and become the property of the Commonwealth.’

The plaintiff's action is in tort to recover damages for the destruction of the lumber, and at the trial before the jury it seems to have been conceded that an extension of time for the removal of lumber from above the ‘flow line’ was required. For the purpose of showing that such an extension had been given by the commission, evidence was offered, which was excluded, from which it could have been found that prior to December 2, 1937, two of the three members of the commission, when at the reservoir, had sanctioned such an extension; that on January 12, 1938, the plaintiff wrote a letter to the commission in which it stated, among other things, that it had purchased the lumber in question from Hanifin, who had informed it that he had made arrangements with the commission for the lumber to remain above the ‘flow line’ until December 1, 1939, and that it would like to have the same arrangement as to other lumber that was to be cut and stored, so that it could remain above the ‘flow line’ until December 1, 1939; that at a meeting of the commission on January 27, 1938, at which all the commissioners were present, the matter referred to in the plaintiff's letter was discussed (evidence of this meeting and that the matter was discussed was admitted); that the secretary of the commission was instructed to write a letter to the plaintiff granting an extension of time within which the lumber could remain at the plaintiff's risk on land above the ‘flow line’; and that on January 29, 1938, the secretary wrote a letter to the plaintiff acknowledging receipt of its letter of January 12, 1938, and stating: ‘I see no objection to the lumber remaining at your risk on land above the flow line * * * until December 1, 1939.’ One member of the commission testified that he knew the lumber was standing above the ‘flow line’ after December, 1938, and that the commission, despite the fact that they knew the lumber was there, made no attempt to secure possession of it or take ‘title’ on behalf of the Commonwealth. We didn't want the lumber. We were trying to get rid of lumber.' From proffered testimony, which was excluded, of another member of the commission, it could have been found that the commission knew the lumber was stored above the ‘flow line’ after December 1, 1938 and that the commission at no time made any attempt to take possession of the lumber and did not assert any title to it. It was stipulated by the parties that there is nothing whatever in the record of the meeting of the commission on January 27, 1938, which in any way pertains to or refers to any request of the plaintiff for an extension.

Apart from other evidence, hereinafter referred to, relative to what the plaintiff did with reference to the lumber during 1939 up to the time of the fire, the foregoing is, in substance, all the material evidence admitted or excluded, and with the trial in that state the judge stated to the jury that, in the interests of shortening the time of the trial, he was going to rule on a question which lay ‘at the very threshold of the case, that all parties may have it determined, if they see fit, by a higher tribunal * * *, and that is in regard to the title to this lumber which was burned allegedly through the negligence of the defendant here.’ He ruled that, there being no record of any modification of the Hanifin contract by way of extension of time for the removal of the lumber, the lumber reverted to the Commonwealth, and that an extension of time could be only by modification of the contract through a vote of the commission, recorded upon its records through its clerk, and that consequently the plaintiff had no title to the lumber. He directed the jury to return a verdict for the defendant, saving the exception of the plaintiff to his ruling, ‘so that * * * [it] may get a decision from a higher court and if I am wrong * * * the case can be tried out comparatively briefly upon merely the question of negligence and damages.’ The plaintiff saved exceptions to the exclusion of the proffered evidence hereinbefore referred to and also to the judge's ruling, and to his direction of a verdict for the defendant, and the parties stipulated that if on the competent evidence the ruling was incorrect and the direction of a verdict for the defendant was error, a new trial should be had, otherwise judgment should be entered on the verdict. The judge approved this stipulation and reported the case to this court. G.L.(Ter.Ed.) c. 231, § 111.

1. We are of opinion that there was no error in the exclusion of evidence tending to show that the Hanifin contract had been modified, or in the ruling that the plaintiff had no title to the lumber in the sense in which the word title was therein used. It is unnecessary to repeat what was said in Hanifin v. C & R Construction Co., 313 Mass. 651, 48 N.E.2d 913 to the effect that, if the lumber was not removed from the proscribed area within the time provided by the contract, the title to it reverted to the Commonwealth and nothing had to be done by it to enforce the forfeiture or reverter.

Since 1897, at least, it has been provided, in effect, that every department, board, commission, or office of the Commonwealth, or of a county, city or town, for which no clerk is otherwise provided by law, shall designate some person as clerk, who shall enter all its votes, orders, and proceedings in book and shall have the custody of such books and the department, board, commission, or office shall designate an employee or employees to have the custody of its ‘other public records.’ St.1897, c. 439, § 2, G.L.(Ter.Ed.) c. 66, § 6. When said c. 439, entitled ‘An act relative to public records,’ was enacted, it was provided in § 1, that the words ‘public records' when used in that or any other act, should, unless manifestly inconsistent with the context, be construed to mean any written or printed book or paper, or any map or plan of the Commonwealth, or of any county, city or town ‘in or on which any record or entry has been or is to be made in pursuance of any requirement of law and any book, paper, record or copy mentioned in either of the five following sections.’ It is unnecessary to refer in detail to the ‘following’ sections other than § 2. The provisions of §§ 1 and 2 of said c. 439 appeared in R.L. c. 35, §§ 5 and 11. When the General Laws were enacted the section containing the definition of public records was placed in c. 4, § 7, Twenty-sixth, and the provisions relative to the keeping of departmental and other records were placed in c. 66, § 6. The commission that was appointed to consolidate and arrange the Public Statutes was not authorized to make substantive changes. See Resolves of 1896, c. 87. Commissioners of Public Works v. Cities Service Oil Co., 308 Mass. 349, 359, 32 N.E.2d 277. In the preliminary...