Bemis v. Curtis

• Decision Date: 07 January 1921
• Citation: 129 N.E. 360,237 Mass. 60
• Parties: BEMIS v. CURTIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 60

129 N.E. 360

BEMIS

v.CURTIS.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 7, 1921.

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Action by Addison L. Bemis against Varnum P. Curtis, resulting in directed verdict for defendant, and plaintiff excepts. Exceptions sustained, directed verdict set aside, and judgment entered for plaintiff in accordance with stipulation.

Rufus B. Dodge and Amos T. Saunders, both of Worcester, for plaintiff.

Clarence E. Typper, of Worcester, for defendant.

BRALEY, J.

The plaintiff, a tenant at will and nurseryman, in occupation of the premises when the alumni association acquired title in fee, owned the personal property thereon consisting of ‘an office building, packing shed, small greenhouse and outbuildings * * * and a considerable quantity of small trees and shrubbery set out and growing in the ground.’ It appears from the auditor's report that the association never claimed ownership of this property, but only requested him by letter to remove it ‘within 30 days, so that the contractor can have free sweep for construction work.’ The plaintiff endeavored to have the time extended, but was told by the secretary of the association to see the defendant, who was to be the contractor. While the defendant testified at the trial before the court that he never authorized the plaintiff to remain in possession after the 30 days had expired, the jury on the auditor's report could find he assured the plaintiff ‘that he would extend him whatever courtesy he could in reference to the matter, and would give him notice from time to time when the land which the plaintiff occupied would be need for the operations which were to be conducted thereon by the defendant under his contract.’ The time for and process of removal having been thus prolonged, the plaintiff took away the buildings, and from time to time as the work progressed and with such promptitude as not to hinder the contractor; removed small quantities of shrubs, when without previous notice, the defendant's foreman forbade him ‘to touch or to take away any of the remainder of the shrubbery,’ and the defendant also informed him, ‘that he must now keep off the property.’

The defendant, an independent contractor, could make such arrangements as he pleased with the plaintiff, and his peremptory refusal under the circumstances to permit him with his men to enter for the purpose of immediately removing all the...