Gen. Heat & Appliance Co. v. Goodwin

• Citation: 54 N.E.2d 676,316 Mass. 3
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 26 April 1944
• Parties: GENERAL HEAT & APPLIANCE CO. v. GOODWIN et al.

316 Mass. 3

54 N.E.2d 676

GENERAL HEAT & APPLIANCE CO.

v.GOODWIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 26, 1944.

Suit by General Heat & Appliance Company against George E. Goodwin, one Hyde and another to compel redelivery of a heating plant sold and delivered under a contract of conditional sale to defendant first named, and to recover damages. Decree for plaintiff, and defendant last named appeals.

Modified, and, as modified, affirmed.Appeal from Superior Court, Suffolk County; Spalding, Judge.

Before FIELD, C. J., and QUA, RONAN, and WILKINS, JJ.

J. F. Connolly, of Boston, for appellant.

E. L. Schwartz, of Boston, for appellee.

WILKINS, Justice.

This is a suit in equity under G.L.(Ter.Ed.) c. 214, § 3(1), by a vendor to compel the redelivery of a ‘Delco-Heat Conditionair’ sold and delivered under a contract of conditional sale to the defendant Goodwin at his residence at 16 Radford Lane, Dorchester, and to recover damages. Other parties defendant are the Merchants Cooperative Bank, holder of a first mortgage on the premises, and one Hyde, present owner through the foreclosure by sale of a second mortgage of which he had been the assignee. The defendant Goodwin defaulted, and the bill of complaint was taken pro confesso as against him. The case was tried before a judge on a statement of agreed facts, and from an ‘interlocutory decree’ the defendant Hyde appealed.

The plaintiff has filed a motion that the appeal be dismissed as prematurely entered. This motion must be denied. The decree declared that the plaintiff had title to the ‘conditionair’ and was entitled to possession; established the indebtedness of Goodwin to the plaintiff; provided that upon payment within twenty-one days the plaintiff should give to Goodwin a bill of sale, or, in the alternative, that if payment were not made, Goodwin should deliver to the plaintiff, or permit the plaintiff to repossess, the ‘Conditionair,’ without waiver of the indebtedness, and with the right of resale; made an order, not affecting Hyde, for a small payment by the plaintiff to the bank in the event of repossession; set forth that none of the defendants was entitled to damages against the plaintiff; ‘perpetually restrained and enjoined’ all defendants from removing, encumbering, or disposing of the ‘Conditionair’ and from interfering with its removal by the plaintiff so long as the indebtedness remained unsatisfied; required the plaintiff, upon making a sale under § 13F, inserted in G.L.(Ter.Ed.) c. 255 by St.1939, c. 509, § 2, to file a report in court; and continued the suit ‘for such further decrees as may be necessary in the premises.’

The decree, although contemplating the possibility of supplemental decrees in the event that a sale should be made, conclusively determined the matters in issue. By it Hyde was deprived, in favor of the plaintiff, of his asserted title and possession, subject only to a condition subsequent, which might relieve him from the consequences of failure in the controversy, in the contingency of payment of the indebtedness to the plaintiff by Goodwin, who had never been an active participant in the litigation. The bank, which did not contend that the ‘Conditionair’ was covered by the first mortgage, had merely sought an order for restoration of the premises should the plaintiff succeed in the prayer for its return. The decree, in spite of its title, was a final decree, and the appeal is rightly before us. Kingsley v. Fall River, 280 Mass. 395, 399, 400, 182 N.E. 841;Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co., 306 Mass. 362, 364, 365, 28 N.E.2d 222;Seder v. Kozlowski, 311 Mass. 30, 33, 40 N.E.2d 14.

The statement of agreed facts shows the course of events to have been as follows: On March 14, 1941, Goodwin executed a second mortgage of the real estate to one Rogers. The mortgage, recorded on the same day, covered, ‘Also, insofar as the same are, or can by agreement of the parties be made, a part of the realty, all of the following articles now or hereafter on the above described premises or used therewith:-Plumbing, heating,-ventilating and air conditioning apparatus and equipment,-motors-, and other fixtures whether or not included in the foregoing enumeration.’ On March 20 the plaintiff by a conditional sale contract sold to Goodwin the ‘Conditionair,’ which immediately thereafter was placed in the basement and apparently constituted the only means of heating the house. The contract, no notice of which was recorded, provided for payment of $860.76 in thirty-six monthly instalments and contained the following: ‘It is understood and agreed that title to said property * * * shall not pass to the buyer until the total purchase price with interest * * * shall have been fully paid * * * [and] said property shall remain personal property and shall not become a part of the realty; that the buyer shall keep said property free from all liens, taxes and incumbrances and will not, without the written consent of the seller, mortgage, pledge, sell or in any other wise dispose of said property or any part thereof, or the buyer's interest therein. * * * In the event of the failure of the buyer to pay any of said installments when due, * * * at the time and in the manner herein specified (time being of the essence of this contract); then * * * the seller may, at its option, declare the entire balance of the unpaid purchase price at once due and payable * * * and thereupon the seller may take immediate possession of said property, including all equipment, attachments and accessories thereon. * * *’ On June 25 Rogers assigned his mortgage to Hyde. This assignment was recorded on June 26. On October 22 Hyde made a peaceable entry, and thereafter foreclosed by sale at public auction, and bought in subject to the first mortgage and taxes. The foreclosure deed was duly recorded. On January 27, 1942, Hyde for the first time learned of the conditional sale contract, no payments under which had been made.

The premises, a wooden-framed, seven room, single family dwelling house about forty years old, were originally designed for hot air heat. There was ducts for the transmission of air leading from a hot air furnace along the basement ceiling, to which they were fastened by screws and bolts or suspended by wire loops, and thence continuing up through the walls and opening out into registers and grilles. The furnace, originally a coal burner, had been converted to an oil burner. The premises could be heated by any mechanism which heated and circulated air.

The ‘Conditionair’ was a combination oil burner and winter air conditioner, wholly contained in a thin walled metal cabinet. It was a patented, standard type, one of a series of models of oil burners manufactured by General Motors Sales Corporation, and was a compact unit thirty by fifty-three by forty-five inches weighing seven hundred thirty pounds, capable of being disassembled into easily handled parts and removed without injury to itself or the real estate through doors or existing openings in the building. It consisted in part of a heating transfer unit in three parts, twin side chambers, placed on either side of a central combustion chamber, which contains a heat transmitter, as well as a burner, a small fan, a small motor, a humidifier, ducts, and two plenum chambers. The ‘Conditionair’ was taken from stock and not peculiarly designed for, or adapted to, the premises. It could be easily taken to any other dwelling, where it would operate upon assembly and connection with the electricity, oil, and duct works. If removed, its value would be unchanged.

Before installing the ‘Conditionair’ the plaintiff removed the furnace, oil burner, and basement duct works, and placed them in the yard at a point designated by Goodwin. The plaintiff then ran new ducts of thin sheet metal along the basement ceiling fastened by small screws. These ducts were connected at one end to the existing ducts and at the other end to a plenum chamber. A cold air return and an additional register were cut in the floors, which could be restored to their former condition at a cost of $91.50. The ‘Conditionair’ itself was assembled by connecting the central combustion chamber with the heat transfer unit,...