Flesher v. Handler

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: Flesher v. Handler, 303 Mass. 482, 21 N.E.2d 975 (Mass. 1939)
• Decision Date: 07 July 1939
• Parties: FLESHER v. HANDLER. HANDLER v. FLESHER.

303 Mass. 482

21 N.E.2d 975

FLESHER

v.HANDLER.

HANDLER

v.FLESHER.

Supreme Judicial Court of Massachusetts, Middlesex.

July 7, 1939.

Exceptions from Superior Court, Middlesex County; R. H. Beaudreau, Judge.

Action by Bessie Handler against Philip Flesher for conversion, and petition by Philip Flesher against Bessie Handler to enforce a lien for storage. The superior court ordered that the lien be enforced and found for defendant Philip Flesher in the action for conversion. On Bessie Handler's exceptions.

Exceptions overruled.B. I. Goldberg and L. Hammer, both of Boston, for Flesher.

S. Sigilman, of Boston, for Handler.

LUMMUS, Justice.

On January 19, 1933, Handler bought furniture from Flesher for cash, to be delivered later. Handler without good reason repudiated and attempted to rescind the purchase, and unsuccessfully tried to get her money back in an action in which judgment in favor of Flesher as defendant was rendered on February 2, 1934. On February 12, 1934, Handler made demand for the furniture, but Flesher refused to deliver it, claiming a lien for the storage of it. Handler then brought an action for conversion, and Flesher brought a petition under G. L. (Ter.Ed.) c. 255, §§ 26-29, to enforce a lien for storage from July 1, 1933, at the rate of $5 a month. These proceedings came to trial in the Superior Court before a judge without a jury. He ordered that the lien claimed be enforced, and found for the defendant Flesher in the action for conversion. Handler alleged exceptions.

There was evidence that while Handler was seeking and Flesher was resisting a rescission of the sale, Flesher tried to get her to receive the goods but she refused, and that in the spring of 1933 he wrote her that unless she would receive the goods $5 a month would be charged as storage beginning July 1, 1933. This was followed by another letter on September 20, 1933, stating, ‘We are holding the articles you bought, and to which title passed to you, subject to our claim for storage, as in a letter sent to you sometime ago.’ There was no evidence that she ever expressly agreed to pay storage.

For Flesher to prevail, he had to prove, at least in his petition to enforce the lien, that Handler owed him for storage, and that he had a lien therefor. The decision was in these words: ‘I find and rule that the title to the furniture passed to * * * [Handler] on January 19, 1933, and that * * * [Flesher] is entitled to a lien in accordance with his petition.’ The common formula ‘find and rule,’ though not well chosen, has been interpreted so as to require us to support the decision if warranted upon the evidence. Sylvester v. Shea, 280 Mass. 508, 182 N.E. 916;Royal Paper Box Co. v. Munro & Church Co., 284 Mass. 446, 450, 188 N.E. 223;Johnson v. Rosengard, Mass., 12 N.E.2d 825;Gaw v. Hew Construction Co., Mass., 15 N.E.2d 225.

Even though Flesher had a valid claim for storage, it does not follow that at common law he had a lien. Lewis v. Gray, 109 Me. 128, 83 A. 1, 39 L.R.A.,N.S., 1164, Ann.Cas.1913D, 1298. Although carriers and warehousemen have liens for storage, recognized at common law, in general liens upon chattels at common law were given only for services that improved them. A landlord is entitled to payment for the storage of goods left behind by an outgoing tenant, but he has no lien. Preston v. Neale, 12 Gray 222;Field v. Roosa, 159 Mass. 128, 130, 34 N.E. 77;Clabburn v. Phillips, 245 Mass. 47, 49, 139 N.E. 498;Whitlock Machine Co. v. Holway, 92 Me. 414, 42 A. 799. Compare Finnigan v. Hadley, 286 Mass. 345, 190 N.E. 528. A finder of goods has a claim against the owner for caring for them, but apparently has no lien at common law unless a reward has been offered for their return. Chase v. Corcoran, 106 Mass. 286;Keith v. De Bussigney, 179 Mass. 255, 260, 60 N.E. 614;Wentworth v. Day, 3 Metc. 352,37 Am.Dec. 145. An agistor or keeper of animals had no lien upon them at common law for their keeping, unless one was created by contract. Goodrich v. Willard, 7 Gray, 183;Perkins v. Boardman, 14 Gray 481;Goell v. Morse, 126 Mass. 480, 482. Compare Harris v. Woodruff, 124 Mass. 205, 26 Am.Rep. 658. See now G.L. (Ter. Ed.) c. 255, § 24. We have found no authority for holding that a non-contractual common law lien exists under the circumstances of this case, unless it be Leavy v. Kinsella, 39 Conn. 50. The Legislature thought it necessary to provide a statutory lien for the storage of motor vehicles. G.L. (Ter.Ed.) c. 255, § 25.

A contention might be made that from September 20, 1933, a contractual lien or pledge existed. Where the goods of one person are on the premises of another, a notice that storage will be claimed for the future unless the goods are removed, may create a valid claim for storage. The failure to perform the alternative duty of removing the goods warrants a finding of an implied promise to pay for storage. Taylor v. Dexter Engine Co., 146 Mass. 613, 16 N.E. 462;Commonwealth v. Hull, Mass., 5 N.E.2d 565;Bowley v. Fuller, 121 Me. 22, 115 A. 466, 24 A.L.R. 964; Williston, Contracts (Rev. Ed.) §§ 71, 93A-91D. Where the notice states that unless the goods are removed a lien will be claimed, the failure to remove them may warrant a finding of consent to the lien. Schneider v. Dayton, 111 Mich. 396, 69 N.W. 829;Othoudt v. Addison Fur Corp., 262 Mich. 481, 486, 247 N.W. 723.

But we think the case is determined by the Sales Act, G.L. (Ter. Ed.) c. 106, § 40. A buyer who fails after request to take delivery is liable ‘for a reasonable charge for the care and custody...