Commercial Credit Corp. v. Gould

• Decision Date: 03 March 1931
• Citation: 175 N.E. 264,275 Mass. 48
• Parties: COMMERCIAL CREDIT CORPORATION v. GOULD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 48

175 N.E. 264

COMMERCIAL CREDIT CORPORATION

v.GOULD.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1931.

Appeal from Superior Court, Suffolk County; Louis S. Cox, Judge.

Bill in equity by the Commercial Credit Corporation against Joseph S. Gould. From a final decree dismissing the bill, plaintiff appeals.

Reversed, and a decree directed to be entered in accordance with opinion.

J. G. Kelly, of Boston, for plaintiff.

F. L. Norton, of Boston, for defendant.

FIELD, J.

This is a bill in equity brought in the superior court by the assignee of the interest of the Beaudette & Graham Company as vendor under a written contract of conditional sale, executed in March, 1929, but not recorded under G. L. c. 184, § 13, whereby the vendor agreed to furnish to the vendee, the Middlesex Apartments, Inc., and install in its premises numbered 247-249 Chestnut Hill, Brighton, certain refrigerating equipment, title thereto to remain in the vendor until full payment of the purchase price, including the notes given therefor, against the mortgagee in possession of the premises in question under a duly recorded mortgage dated November 9, 1928, to enjoin the defendant from proceeding with a foreclosure sale until further order of the court, to establish the plaintiff's right to the refrigerating equipment, and to secure an order that the defendant permit the plaintiff to remove the refrigerating equipment from the premises.

The trial judge filed ‘findings of fact, rulings and order for decree.’ He found that the premises were subject to mortgage, and that the refrigerating equipment was sold on conditional sale, substantially as alleged, that the refrigerating equipment was installed, but the full purchase price had not been paid, and other material facts. He found and ruled as follows: ‘I find and rule that the contract between the Beaudette & Graham Company and the Middlesex Apartments, Inc., is one which comes within the provisions of G. L. c. 184, § 13. I find that the personal property * * * was wrought into in part and, as to the rest of it, attached to the real estate in the manner * * * described [in the findings]. I find and rule that all of this property, so installed in this building, comes within the rule stated in Clary v. Owen et al., 15 Gray, 522, and McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12’; also found and ruled, if material, that the plaintiff, by bringing an action against the Middlesex Apartments, Inc., in the municipal court of the city of Boston upon a certain promissory note, ‘made an election’ which bars relief in this suit; refused ‘on facts found’ to make certain rulings requested by the plaintiff, and ordered the bill dismissed. Later a final decree dismissing the bill with costs was entered. From this decree the plaintiff appealed. The evidence is reported.

1. As between the parties to this case the contract of conditional sale did not come within the provisions of G. L. c. 184, § 13 (now amended by St. 1929, c. 261). This statute provides that ‘no conditional sale of * * * [certain articles of personal property] which are afterward wrought into or attached to real estate * * * shall be valid as against any mortgagee * * * of such real estate,’ unless a notice thereof is recorded in the registry of deeds. The word ‘mortgagee’ does not include a mortgagee of real estate under a previously recorded mortgage. Recording a notice of a conditional sale does not take away from such a mortgagee any rights which he would have had apart from the statute. Waverly Co-operative Bank v. Haner (Mass.) 173 N. E. 699;Greene v. Lampert (Mass.) 174 N. E. 669;Abeloff v. Peacard (Mass.) 171 N. E. 14, is not to be regarded as authority to the contrary. For the same reason, if not for others, failure to record such a notice gives to the prior mortgagee of the real estate no rights against the conditional vendor which he would not have had apart from the statute. It is unnecessary, therefore, to consider whether refrigerating equipment is within its terms.

[275 Mass. 51]2. Whether as between the plaintiff, the assignee of the conditional vendor of the refrigerating equipment, and the defendant, the mortgagee of the real estate, the refrigerating equipment became a part of the realty was a mixed question of law and fact.

The trial judge found that the refrigerating equipment ‘was wrought into in part and, as to the rest of it, attached to the real estate’ in the following manner: ‘There is a single building on the mortgaged premises consisting of 54 apartments and built in the form of two wings, in each of which are 27 apartments. The refrigerating equipment consists of two complete units, each supplying 27 apartments. Each unit has a compressor, so called, which is installed in the basement of the building. These compressors are not attached to the floor. They rest upon the skid upon which they are shipped and delivered to the premises. From these compressors, two small pipes 1/2 inch and 3/4 inch in diameter respectively run up through the partitions and walls of the building with take-offs at the several floors, upon each of which and in each apartment on which are boxes, so called, or refrigerators which are attached to the take-offs from the lines of piping by flexible copper tubing. These boxes are movable and there is enough of the flexible copper tubing so that the boxes may be moved about for some distance for the purpose of cleaning behind them. The attachment to the boxes is at their rear. The compressors are operated by electric motors which are a component part of the compressors. The compressors are water-cooled and the water pipes run from the water main to the machines, and, after the water has passed through them, it leaves by a pipe which may be extended, and which is extended in this case, to open sinks. The compressors and the boxes, so called, are of ordinary stock patterns of their type and can be easily removed from the building without any damage whatever to it. While there was testimony at the trial to the effect that the piping which runs through the walls and partitions also can be easily removed without damage to the building, yet the plaintiff expressly waived any claim of right to remove said piping.’ The judge at the request of the plaintiff made the following so called ruling of law, which is in substance a finding of fact (Medford Trust Co. v. Priggen Steel Garage (Mass.) 174 N. E. 126): ‘The original vendor and the vendee did not intend that the refrigerating equipment should become a part of the realty.’

The judge found and ruled that ‘all of this property, so installed in this building, comes within the rule stated in Clary v. Owen et al., 15 Gray, 522, and McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12,’ that is, as between the mortgagee of the real estate and the conditional vendor the refrigerating equipment...