Edinburg v. Allen Squire Co.

• Decision Date: 31 January 1938
• Citation: 12 N.E.2d 718,299 Mass. 206
• Parties: ELIAS EDINBURG v. ALLEN SQUIRE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 206

12 N.E.2d 718

ELIAS EDINBURG v. ALLEN SQUIRE COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

January 31, 1938

September 23, 1936.

Present: RUGG, C.

J., FIELD, DONAHUE & LUMMUS, JJ.

Conversion. Practice, Civil, Appeal; Auditor: report, objections to report.

An appeal from the allowance of a motion for judgment upon the report of an auditor whose findings of fact were to be final did not bring to this court for review a denial of a motion for recommittal of the report; and objections, annexed to the report, to findings and refusals to find presented no questions in addition to those apparent on the face of the report.

The owner of a mill building committed no act of conversion merely by locking the building while machinery of a tenant at sufferance was therein and later removing and storing the machinery in the exercise of a right which was his under an agreement between him and the tenant, where there was no demand by the tenant for the property or for an opportunity to remove it, and no refusal by the owner.

TORT. Writ in the Superior Court dated September 4, 1935. The defendant's motion for judgment upon an auditor's report was allowed by Whiting, J.

The case was submitted on briefs. M. M. Taylor, for the plaintiff.

G. H. Mirick, D.

Whitcomb, & P R. O'Connell, for the defendant.

FIELD, J. This is an action of tort for conversion of machinery and other personal property. The case was referred to an auditor whose findings of fact were to be final. After the auditor had filed a report the trial judge "found" for the defendant on this report and allowed the defendant's motion for judgment thereon. The plaintiff appealed.

The auditor's report was in effect a case stated (Robinson v Lyndonville Creamery Association, 284 Mass. 396 , 398) and the action of the judge thereon an order for judgment. The case falls, therefore, within one of the classes of cases in which appeal is available. G. L. (Ter. Ed.) c. 231, Section 96.

The appeal, however, does not bring before us for review the order of the trial judge denying the plaintiff's motion to recommit the report. And the plaintiff's objections, annexed to the report, to findings by the auditor and to his failure to make findings present no question for decision in addition to those apparent on the face of the report. Carbonneau v. Cavanaugh, 290 Mass. 139 , 140.

The auditor in his report, after making subsidiary findings of fact, states: "In my view of the law applicable to these facts, I have reached the conclusion that there was no actual conversion on the part of the defendant and I so find." This statement evidently means that the conclusion was based wholly on subsidiary facts found. It is not merely a ruling of law on such facts. It is, rather, a finding of fact, though deducible from other facts found and involving questions of law. Duggan v. Wright, 157 Mass. 228 , 231. W. T. Tilden Co. v. Densten Hair Co. 216 Mass. 323 , 327. Dobias v. Faldyn, 278 Mass. 52 , 58.

MacLeod v. Davis, 290 Mass. 335 , 338. The subsidiary findings support this ultimate finding.

The auditor made in substance the following specific findings: The plaintiff, prior to August 24, 1929, was in possession of a mill building on Cherry Street, Spencer -- herein referred to as the Cherry Street mill -- and was carrying on there the business of manufacturing cloth. In the building were certain machinery, equipment and other personal property -- to a part of which this action relates. The plaintiff's ownership of the machinery and equipment is not disputed. He was the owner of the other personal property. The Cherry Street mill was subject to a mortgage to the defendant. The defendant, on August 24, 1929, foreclosed its mortgage by sale and took title to the real estate under a foreclosure deed. On the forenoon of August 30, 1929, the defendant gave the plaintiff written notice to remove all personal property owned by him from the premises "before noon, Saturday, August 31, 1929, and [to] vacate the premises, as we shall lock the doors to the factory on the premises, at that time." On that day the plaintiff "began to get ready to vacate the mill by taking machines apart in anticipation of their removal, and from that time on he was in process of dismantling and removing the machines and equipment until the doors of the mill were locked at noon on September 28." On August 30, 1929, the plaintiff brought a bill in equity against the defendant "to restrain the defendant from locking up the mill and impeding the removal of the machinery and other personal property therefrom." A "temporary restraining order issued and remained in effect until September 9," 1929. On that day the bill in equity came on for hearing before a judge of the Superior Court. Both parties were represented by counsel. An "agreement was orally reached in regard to the removal of the property" and the bill in equity was dismissed. The auditor found that the attorney for the plaintiff had authority to make this agreement and it is not disputed that the attorney for the defendant also had such authority. On the same day the attorney for the defendant sent a letter to the attorney for the plaintiff which set forth this oral agreement.

The oral agreement as set forth in the letter was as follows: "Under the understanding reached Edinburg upon the payment of $31.25 to the Allen-Squire Co. is to have the right for one week's time to remove his effects and the machinery, rightful possession of which he claims, from the premises on Cherry Street, Spencer. If at the end of one week's time the property is not removed he may upon the payment of an additional sum of $31.25 have another week's time within which to remove said property. In other words, the Allen-Squire Co. is to permit him to remove the machinery and his property without molestation upon their part. . . . In the event that Edinburg does not pay the stipulated sums as provided herein, to wit, at the rate of $31.25 in advance per week, the Allen-Squire Co. may follow such remedies as it sees fit either with respect to the removal of the property from its premises or locking up the doors, and it will look to Mr. Edinburg for any charges or expenses incurred by it in case it has to remove from its premises."

On September 10, 1929, the plaintiff paid the defendant one week's rent and on September 17 paid another week's rent. The plaintiff made no further weekly payments. During these two weeks he removed some of the machinery and personal property from the Cherry Street mill.

"On Saturday...