Brown v. Wallis

• Decision Date: 16 June 1874
• Citation: 115 Mass. 156
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles R. Brown & another v. Paul D. Wallis

115 Mass. 156

Charles R. Brown & another v. Paul D. Wallis

Supreme Court of Massachusetts

June 16, 1874

Suffolk. Replevin of certain fixtures and chattels, which were at the time they were replevied in a store numbered 49 Lincoln Street, Boston.

Trial in the Superior Court, before Devens, J., who allowed a bill of exceptions in substance as follows:

On October 1, 1870, the defendant, who was the owner of the store in question, made a written lease of it to one William J. Cain, who entered under the lease, and placed in the store the fixtures and other chattels replevied. On March 13, 1871 while continuing to occupy the store under the lease, he executed and delivered a bill of sale to Granville Wilder of "all the personal property of every description now in the store numbered 49 on Lincoln Street, consisting of one bar, bar, gas and other fixtures, furniture, tools implements, lot of glass ware, ale pump, stock of cigars and other goods, and various other articles too numerous to mention, meaning and intending to convey all the personal property hereby, now in sad store and office connected therewith." Wilder the same day made and executed to Cain a mortgage of "all the store, bar, gas and other fixtures this day conveyed to me by said Cain, situated in store and office numbered 49 on Lincoln Street." Cain on March 29, 1871, assigned this mortgage and all his right title and interest "in the goods and property therein described" to the plaintiffs, to whom also Wilder, by a transfer on the back of the mortgage, dated January 22, 1872 conveyed his right, title and interest "in and to the within described mortgaged property."

At the time of Wilder's release the defendant was in possession of the premises and held the keys, having taken possession from Wilder on or about the 16th of the same month. At the trial the witness Cain, who was called by the plaintiffs, and who originally placed the fixtures in the store and built the counting-room therein, testified that said counting-room was used as his office, that his books of account were kept there, and that the usual office business of such a store was transacted in said counting-room, and there was no other evidence upon this point.

The counting-room or office was a structure eight or nine feet square, six or seven feet in height, not reaching within several feet of the ceiling, and consisted of a framework sheathed and panelled, both outside and inside, and made double, and was fastened to the floor by nails, and to the brick wall against which it stood, and which formed the fourth side, by nails in cleats, which cleats were themselves nailed into the joints of the brick. A crowbar was used by the plaintiffs' agents in removing this structure, under the replevin writ, and the three sides or sections were entirely separated from each other by such removal. There were two doors in the structure, and windows in two or three sides, and it was proved that there was no other place in the store called, or...