Lawyers' Mortg. Inv. Corp. of Boston v. Paramount Laundries, Inc.

• Decision Date: 02 July 1934
• Citation: 191 N.E. 398,287 Mass. 357
• Parties: LAWYERS' MORTG. INV. CORPORATION OF BOSTON v. PARAMOUNT LAUNDRIES, Inc., et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 357

191 N.E. 398

LAWYERS' MORTG. INV. CORPORATION OF BOSTON

v.PARAMOUNT LAUNDRIES, Inc., et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

July 2, 1934.

Appeals from Superior Court, Suffolk County; A. R. Weed, Judge.

Suits in equity by Lawyers' Mortgage Investment Corporation of Boston against Paramount Laundries, Incorporated, and others, and against Paramount Laundries, Incorporated, and another. From interlocutory and final decrees, plaintiff appeals, and from the final decree, defendant Braun appeals.

Affirmed.

M. H. Sullivan and James F. Sullivan, both of Boston, for plaintiff.

C. P. Houston, of Boston, for defendant Troy Laundry Mach. Co., Inc.

A. Brayton, of Boston, for defendant Samuel G. Braun.

LUMMUS, Justice.

These are bills in equity to establish the plaintiff's title to certain laundry machinery, all of which was sold on conditional sale contracts, a part by the defendant Troy Laundry Machinery Company, Inc. and a part by the defendant Samuel G. Braun. The machinery was installed in the building of the defendant Paramount Laundries, Inc., the purchaser. The plaintiff was the holder by assignment of a mortgage covering the building, and purchased the mortgaged premises at foreclosure sale. The defendants by counterclaim seek affirmative relief.

This court, on a report of interlocutory matters (Lawyers' Mortgage Investment Corp. of Boston v. Paramount Laundries, Inc., 279 Mass. 314, 181 N. E. 262), affirmed orders for interlocutory decrees declaring that the machinery was personalty, the property of the several defendants. The two cases now before this court are those in which the prevailing parties are Troy Laundry Machinery Company, Inc., and Samuel G. Braun, respectively. The interlocutory decrees, entered after rescript in the several cases, adjudged that the items of machinery in question in the several cases ‘are personal property’ and that the defendant named ‘is entitled to the immediate possession of the same and to remove the same from the plaintiff's premises in or within twenty days from the entry of this decree,’ and referred the several cases to a master ‘to determine the amount of damages, if any, suffered by’ the defendant named ‘by reason of the plaintiff's detention of said property, the damage found, if any, to be paid by the plaintiff to said defendant.’

The master found that the plaintiff began to detain the machinery on November 26, 1930, when it made an entry for the purpose of foreclosing its mortgage on the real estate, and continued to detain the machinery until June 13, 1932, when the interlocutory decrees after rescript were entered and it became settled that the machinery belonged to the defendants. After that date the defendants were free to remove the machinery, and did so on June 28, 1932.

Upon confirmation of the master's report, the judge awarded as damages to the defendant Troy Laundry Machinery Company, Inc. interest on the value of its machinery from November 26, 1930, to June 13, 1932, and depreciation occurring during that period, amounting in all to $6,358.07, with interest from June 13, 1932, and costs. At the same time, the judge awarded as damages to the defendant Braun the value of the use of his machinery from November 26, 1930, to June 13, 1932, and depreciation occurring during that period, amounting in all to $3,033.36, with interest from June 13, 1932, and costs. The interest on the value of the machinery, allowed in the case first mentioned, was allowed as the value of its use of which the defendant had been deprived. Potier v. A. W. Perry, Inc. (Mass.) 190 N. E. 822. The plaintiff appealed in each case from the interlocutory decree overruling certain of its exceptions to the master's report and confirming the report, and also from the final decree. The defendant Braun appealed from the final decree because it failed to award to him his attorney's fees under the terms of an injunction bond given him by the plaintiff (Weinberg v. Goldstein, 241 Mass. 259, 135 N. E. 126), conditioned among other things upon reimbursing Braun ‘for such reasonable counsel fees as the court may fix as necessarily incurred by said defendant in defending against said proceedings to final decision.’

The main question is whether there was a conversion of the machinery by the plaintiff on November 26, 1930. The master finds that on that day the plaintiff took possession of the machinery, but so far as appears it did so only by taking possession of the building in which the machinery was situated. Since the plaintiff had a right to have the exclusive possession of the building, and to keep it locked for safety, its possession did not of itself constitute a conversion of the machinery. Poor v. Oakman, 104 Mass. 309, 318;Delano v. Curtis, 7 Allen, 470, 473;Spooner v. Manchester, 133 Mass. 270, 273,43 Am. Rep. 514. Compare, on the facts, Jean v. Cawley, 218 Mass. 271, 105 N. E. 1009. But the master finds further ‘that the plaintiff at the time claimed the machinery was part of the realty and intended to hold it as such’ and ‘until June 13, 1932, always considered said machinery to be its own and if demand were made by the defendant would have refused to give it up.’ The finding is in substance that the plaintiff, being in possession of machinery to which the defendants had not only the title but also the right of immediate possession (Marder v. Moose Hill Spring Tonic Co. (Mass.) 189 N. E. 581), claimed dominion over it as against the defendants. This constituted a conversion. The wrongful claim of dominion need not be manifested openly or by any physical act. That it exists, is enough. Dugan v. Nichols, 125 Mass. 576;Wood v. McDonald, 66 Cal. 546, 6 P. 452. See, also, Robinson v. Way, 163 Mass. 212, 39 N. E. 1009;Geneva Wagon Co. v. Smith, 188 Mass. 202, 74 N. E. 299;O'Brien v. McSherry, 222 Mass. 147, 109 N. E. 904. ‘Demand and refusal are never necessary, except as furnishing evidence of an unlawful taking or detention against the rights of the true owner, in an action of replevin, or of an unlawful conversion, in an action of trover. When the circumstances, without these, are sufficient to prove such taking or detention, they are superfluous.’ Edmunds v. Hill, 133...