J.H. Gerlach Co. v. Noyes

• Decision Date: 08 March 1922
• Parties: J. H. GERLACH CO., Inc., v. NOYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 69

134 N.E. 612

J. H. GERLACH CO., Inc.,

v.NOYES.

Supreme Judicial Court of Massachusetts, Suffolk.

March 8, 1922.

Exceptions from Superior Court, Suffolk County.

Action by the J. H. Gerlach Company, Inc., for the benefit of John P. Magann, doing business as J. P. Magann & Co., against Frank A. Noyes, for an alleged conversion of certain bowling alleys. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Plaintiff's assignor sold the alleys to defendant's tenant by a contract of conditional sale. Defendant requested various instructions, asserting that the property alleged to have been converted was not personal property, nor the subject of conversion, and excepted to their refusal. He also excepted to the court's refusal to direct a verdict in his favor.

William Flaherty and William T. McCarthy, both of Boston, for plaintiff.

Wendell P. Murray and John H. Rogers, both of Boston, for defendant.

CARROLL, J.

By a written instrument dated July 16, 1915, the defendant leased to Peterson & Steele certain premises for the term of five years begining October 1, 1915. The lease provided:

‘It is agreed between the parties hereto that any and all alleys which may be constructed by or for the party of the second part [Peterson & Steele] in and upon said premises shall be deemed to be and be affixed to the realty and shall not be removed therefrom except upon the written order of the lessor.’

In January or February, 1916, Peterson & Steele, hereafter called the tenants, entered into possession of the premises, and in February, 1916, J. Magann & Co. sold to them by conditional sale bowling alleys, which were later installed on the premises. This conditional sale agreement was in writing and contained the stipulation:

‘It is agreed that said personal property shall not be so attached or fixed to said building as to become part of the realty, and under no circumstances shall they be deemed so attached.’

In May, 1916, another agreement of the same tenor between the parties was executed and recorded with the city clerk of Chelsea. These agreements were assigned to the plaintiff as security in August, 1916. The tenants assigned their interest in the real estate lease to the Metropolitan Amusement Company, to which assignment the defendant assented, reserving his rights against the tenant ‘for future payments thereunder.’ In September or October, 1916, the tenants failed to pay according to the terms of the conditional sale agreement, and when they were in default J. Magann & Co. demanded that it be allowed to enter and remove the alleys, which demand was refused by the defendant. The jury viewed the premises. There was evidence that an agent of the vendor informed the defendant before the sale of the alleys, that he was about to sell the bowling alleys to the tenants on a conditional sale or lease, under which agreement the alleys were to remain the property of the seller until paid for; that the defendant gave him no information of the terms of the lease, or of the provisions concerning the alleys. There was also evidence that J. Magann & Co. had no notice of this provision of the lease. The action is in tort for conversion. There was a verdict for the plaintiff.

In constructing the alleys a leveling strip called the foundation was laid. To this foundation strips of maple were secured and the alleys, each weighing 3,000 pounds, were fastened to the building by screws and ‘solidly built into the building.’ Between the tenants and the owner of the premises, the alleys, in the absence of evidence showing a contrary intention by the parties, were of such a nature and so fastened to the building that they were a part of the real estate, although they were fixtures which could be removed during the tenancy. Hanrahan v. O'Reilly, 102 Mass. 201. See Hook v. Bolton, 199 Mass. 244, 85 N. E. 175,17 L. R. A. (N. S.) 699, 127 Am. St. Rep. 487. Unless there was an agreement or evidence showing an intention that the articles were to remain personal property, they became in respect to the land owner a part of the freehold and were not personal property. Stone v. Livingston, 222 Mass. 192, 110 N. E. 297;Noyes v. Gagnon, 225 Mass. 580, 114 N. E. 949. If the articles sold to the tenants under the conditional sale were so annexed or wrought into the realty that they became a part of it, at common law the landowner would prevail over the seller. In Clary v. Owens, 15 Gray, 522, the mortgagor in possession purchased mill wheels to be attached to a mill on the premises, it being agreed between him and the builders that the wheels should remain the personal property of the builder until paid for; it was held that the mortgagee could hold them, and in considering the contention that the property could not be claimed by the mortgagee, the court said at page 525:

‘If this position were tenable, it would follow that the mortgagor could convey to another a right in the mortgaged premises greater than he could exercise himself. * * * And we think it is not in the power of the mortgagor, by any agreement made with a third person after the execution of the mortgage, to give to such person the right to hold anything to be attached to the freehold, which as between mortgagor and mortgagee would become a part of the realty.’

This principle has been followed in many cases. Hunt v. Bay State Iron Co., 97 Mass. 279;Thompson v. Vinton, 121 Mass. 139;Tarbell v. Page, 155 Mass. 256, 29 N. E. 585. In the case at bar, although the question of the right to remove the alleys does not arise between mortgagor and mortgagee, the purchasers of the articles were the defendant's tenants and under the express terms of the lease they had no right to remove the alleys without his written consent; and as between the tenants and the lessor, the alleys,...