Gardner v. Buckley & Scott, Inc.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: Gardner v. Buckley & Scott, Inc., 280 Mass. 106, 181 N.E. 802 (Mass. 1932)
• Decision Date: 08 July 1932
• Parties: GARDNER v. BUCKLEY & SCOTT, inc.

280 Mass. 106

181 N.E. 802

GARDNER

v.BUCKLEY & SCOTT, inc.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1932.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Suit by Hartley B. Gardner against Buckley & Scott, Inc. Decree for defendant, and plaintiff appeals.

Decree affirmed.

A. C. Blake, of Boston, for appellant.

C. P. Bartlett, of Boston, for appellee.

WAIT, J.

The plaintiff brings this bill to restrain the defendant from removing an oil storage tank and a Nokol Automatic Oil Heater from a single dwelling house owned and occupied by him. He took title to the premises on May 20, 1931. At that time the tank and heater were in the premises, and he knew nothing of the circumstances attending their installation.

By a contract dated September 21, 1928, Miller, a former owner of the house, contracted with Buckley & Scott, Inc., which was engaged in the business of selling, distributing and installing oil burners and equipment, for the ‘lease and rent’ for a period of five years of the tank and heater to be installed by it in his house. He bound himself to ‘pay for the use of said oil burning equipment a monthly rental’ of $12 per month for sixty months, the ‘rental payments' to be evidenced by promissory notes of even date with the contract and he executed a note for $720 payable in such monthly instalments. At the end of the term the lease was to be ‘automatically renewed’ from year to year unless, sixty days prior to expiration, the lessee requested its termination in writing. In the event that the lessor received no notice, the lessee was to ‘continue to make the minimum monthly rental payments in accordance’ with the agreement. He warranted that he was owner of the premises where the equipment was to be installed, and covenanted that it should remain the personal property of the lessor notwithstanding the manner of its attachment to the realty, and that he acquired no title by virtue of the lease. He covenanted, further, to make all ‘rental payments promptly’; and, in the event of default, that at the option of the lessor, the total rental for the entire period remaining should at once become due and payable, the lessor might enter, take possession, and remove it without notice, and all payments theretofore made be retained by the lessor for the use of the equipment, and all rental payments thereafter due to become immediately due and payable as liquidated damages for the breach. The lessee was to keep the equipment clear of all liens and charges of any character; to use it carefully; to be responsible for damage to it, and upon expiration or default to deliver it up in good condition, reasonable wear and tear of ordinary usage excepted. The lessor agreed to ‘service’ the equipment during the term; to make repairs and replacements necessary through ordinary operation for which the lessee was to pay, replacements to remain the property of the lessor. The service included starting and making necessary adjustments at beginning of each heating season; inspecting; on specific request, rendering emergency assistance and doing all things reasonably necessary to make the heater function; overhauling and greasing at end of heating season and cleaning boiler and flue pipe. The contract ‘contemplated that the lessor may assign the territory including the place where the personal property mentioned in this contract is installed to some person, persons or corporation other than the Lessor’ and provided, if that occurred, ‘the Lessor may assign this contract to such other person, persons or corporation and the latter shall thereupon without notice to the Lessee have and assume all the rights and obligations of the Lessor as of the date of such assignment.’

No notice of this rental agreement was recorded in the registry of deeds. Shortly after its execution the equipment was installed and connected with the steam heating system already in the house. The cylindrical steel tank weighing about one hundred seventy-five pounds was set upon the concrete cellar floor, resting on four steel legs and not fastened to the floor. It was connected with the burner by a pipe, which was not attached to the building and was removable by unscrewing. A fill pipe ran from the tank to outside the house through a hole drilled in the concrete cellar wall. This was removable by unscrewing. The oil burner weighed about one hundred and fifty pounds, was about five feet long and stood eighteen inches above the floor. It rested at one end on two iron legs which stood about three feet outside of the steam boiler of the heating system and in front of it; and, at the other end, inside the boiler on an iron cradle resting on the floor. The aperture through which it passed into the steam boiler was closed by bricks, uncemented, placed around the burner and made air tight by a coating of asbestos over bricks and tubing. This asbestos coating was brittle. It could be broken by a kick, and be removed without damage to the building or boiler. The ash pit door and the grates of the steam boiler were removed to permit this adjustment. A single gas pipe dropped from the gas supply pipe of the house on the cellar ceiling to the burner. It could be removed by unscrewingat either end. A wire running through a galvanized conduit from a special cutout box on the house meter board connected the house electric supply with the burner. It could be removed at either end. The asbestos coating, the gas pipe and the electric wire were the only attachments of the burner to the real estate.

About May 7, 1929, Miller mortgaged the premises to a corporation by a deed recorded May 8, 1929, which conveyed the land and buildings ‘Together with all garages, furnaces, heaters, ranges, screens, awnings, mantels, gas and electric fixtures and all other fixtures of every kind now or hereafter installed in and about said premises, all of which it is agreed shall constitute and be treated as part of said realty.’ The mortgagee had no notice of the ‘rental agreement.’ Nor had the defendant notice of this deed.

Until February of 1931, Miller made monthly payments under the rental agreement. About March 16, 1931, the mortgagee foreclosed its mortgage by sale; and, later, conveyed to the plaintiff. Neither grantor nor grantee then knew of the rental agreement. In June, 1931, the defendant learned of the conveyance. It notified the plaintiff that unless he continued the monthly payments, it would remove the oil tank and burner. The plaintiff refused to pay, and has continued to use the equipment.

The trial judge, in addition to hearing on agreed facts and testimony of witnesses, saw an oil burner of the type in question which, with a model fire box with brick and asbestos, was set up in court. He found, in addition to what has been stated, that the burner was a stock burner that would fit in any house where a burner of that size was needed, that it rested on but was not attached to the floor, and that it bore a plate with tradename, etc., upon it; but that neither tank nor burner bore anything stating it to be the property of the defendant. He found and ruled, as mixed law and fact, that neither tank nor burner ever became part of the real estate, that both remained personal property; and he ruled that G....