Lash v. Ames

• Citation: 171 Mass. 487,50 N.E. 996
• Parties: LASH v. AMES.
• Decision Date: 24 June 1898
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 487

50 N.E. 996

LASH v. AMES.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1898

COUNSEL

Charles S. Hamlin and Charles

E. Hellier, for plaintiff.

J.H Benton, Jr., for defendant.

OPINION

LATHROP J.

The record in this case is unnecessarily voluminous, consisting as it does, of an agreed statement of facts, and 40 pages of evidence, with the questions and answers set forth at length, together with certain rulings requested, and those given, the general finding for the defendant, and a brief report of the case to this court. Such a method of presenting a case to us for the determination of the questions of law involved is to be condemned. See Roskee v. Pulp Co., 169 Mass. 528, 48 N.E. 766. The general facts relating to these questions may be briefly stated, thus: In the early part of 1887, Francis H. Lincoln was a trustee, under the will of John Hennessey, of an estate in Boston, which was then occupied by the plaintiff as a tenant at will, he holding over after the expiration of a written lease. The plaintiff's wife, Bridget A. Lash, was a daughter of John Hennessey, and one of the cestuis que trustent. Lincoln, in the last of January or the first of February of that year was negotiating a sale of the estate to the defendant. Some question arose as to whether Lincoln had power to sell, and he agreed to petition the probate court for leave to sell. On February 9, 1889, Lincoln and the defendant executed an agreement in writing, by the terms of which Lincoln agreed to sell, and the defendant to buy, the estate, the premises to be conveyed on or before March 9th if leave to sell were obtained from the probate court; the price to be paid was $11 per square foot, which included "the amount to be paid to Augustus F. Lash and Bridget A. Lash, the tenants of said premises, for damages to their tenancy." Full possession of the premises was to be delivered to the defendant at the time of the delivery of the deed. On the same day that the agreement was signed, Lincoln notified the plaintiff that he had agreed to sell the premises, and that the plaintiff was to be paid $3,000, from which was to be deducted rent and unpaid taxes. Lincoln and the plaintiff settled upon this basis upon March 9th. The trustee was under no obligation to pay the plaintiff this sum, but it was paid to prevent his making, through his wife or otherwise, opposition to the sale, and thus to enable the trustee to obtain the necessary assent for leave to sell, and pursuant to the agreement of sale. Whether it was paid for any other purpose was in dispute. All the parties interested in the trust estate, including the plaintiff, requested that the prayers of the petition be granted. On March 4th the probate court made a decree allowing the trustee to sell; and the estate was conveyed to the defendant on March 9th, and, in the afternoon of the same day, the defendant's attorney gave a notice in writing to the plaintiff, as follows, omitting the date, address, and the signature: "The premises occupied by you at 149 and 151 Essex street, Boston, have been conveyed to Frederick L. Ames. Please remove your property therefrom, and vacate the premises at once. Mr. Ames desires to tear down the building for purposes of rebuilding upon the estate without delay; and, while he does not wish to incommode you further than is necessary, he must take down the building at once, and you are hereby notified to vacate the premises forthwith." Before the conveyance, the plaintiff had made preparations to move. On February 15, 1889, he had entered into a contract to lease a lot of land, and had bought a building thereon. He was to have room to store his goods as the owner of the building moved his goods out. He began to move his stock in trade, which consisted of old building materials, on March 4th. On that day he moved one load, and one or more loads on each of the following days, namely, March 6th, 8th, 11th, 12th, 13th, 14th; but the greater portion of his stock was still remaining in his store on Essex street. On March 13th, the defendant's agents began to take down the building. The plaintiff on the same day wrote to the defendant, asking that this work be suspended, and that he be given further time to remove the property. To this the defendant's attorney replied that the property would be removed the next day to a suitable place of storage, at the plaintiff's risk and expense. On the same day, the defendant's agent also told the plaintiff that, unless the plaintiff desired the property moved to some other place, he would move it the next day to 183 Washington street, but, if the plaintiff desired it moved to any other place, he would so move it. On March 14th, the defendant, with seven men and seven wagons, moved 30 loads of the plaintiff's property, and the plaintiff moved 14 loads, and the building was cleared. There was evidence that the two sets of men did not interfere with each other, and that the person who had charge in behalf of the defendant told the plaintiff that he would take the goods anywhere he would say. It is stated in the agreed facts that the defendant's agents used proper care, did no unnecessary damage, and used no unnecessary force. On July 15, 1889, the defendant, through his counsel, offered to remove the goods to any place the plaintiff might name, without expense to him. This offer was declined; and in the year 1894, while the property was in the possession of the defendant, it was destroyed by fire, without fault on the defendant's part. The removal of the goods on March 14, 1889, is the conversion relied on.

The plaintiff requested the court to rule as follows: "(1) The plaintiff, upon the conveyance by Lincoln to Ames, became a tenant at sufferance of Ames."...