Looney v. Trimount Theatres, Inc.

Citation184 N.E. 683,282 Mass. 275
PartiesLOONEY v. TRIMOUNT THEATRES, Inc.
Decision Date03 March 1933
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Gray, Judge.

Action by M. Leo Looney, Jr., as assignee for the benefit of creditors of the Candy Box, Inc., against Trimount Theatres, Inc. The court found for plaintiff, and defendant brings exceptions.

Exceptions overruled.

M. L. Looney, Jr., pro se.

G. M. Yaghjian, of Watertown, for defendant.

CROSBY, Justice.

This is an action of tort brought by the plaintiff as assignee for the benefit of creditors of The Candy Box, Inc., seeking to recover damages for the conversion of certain items as set forth in a schedule annexed to the declaration. The case was heard in the Superior Court, without a jury. The judge made the following findings and rulings: ‘The articles referred to in the plaintiff's declaration are tenant's fixtures placed on the premises many years ago by a tenant and left there by several successive tenants at the expiration of leases or tenancies without any effort to remove them. Title thereby passed to the defendant as owner of the premises. The agent of the defendant in the course of letting the premises to the plaintiff's assignor when discussing these fixtures with the assignor's agent led him to believe that the defendant did not assert title to the fixtures and referred him to a third party when inquiry was made as to who owned the fixtures. In consequence of this conduct of the defendant's agent, the plaintiff's assignor then purchased the property from the party to whom it was referred by the defendant. This fact was reported to the defendant's agent and thereupon the lease was signed. After the termination of the lease, the defendant exercised dominion over the goods and refused to permit the plaintiff to have them. Under these circumstances, I give the plaintiff's second request. I find for the plaintiff and assess damages in the sum of $400. I give the defendant's first request and deny its second.’ The plaintiff's second request was as follows: ‘If the defendant's agent acting within the scope of his employment, represented to plaintiff's assignor that title to the goods was in a third person, and the plaintiff's assignor in reliance thereupon, and in good faith purchased said goods from said third person, the defendant is thereby estopped to claim title to said goods as against the plaintiff.’ The defendant's requests were: ‘1. It being a fact that the fixtures referred to in the declaration were not removed by T. Earle McKay, or any other person claiming the same, before the expiration of his tenancy on or about June 1, 1930, that the said fixtures became part of the premises by operation of law. [282 Mass. 277]2. That upon all the evidence the plaintiff is not entitled to recover.’ The defendant excepted to the court's orders, rulings, and refusal to rule as requested, and to the decision in favor of the plaintiff. The findings show that the articles in question are trade fixtures.

The defendant's sole contention is that an action of tort for conversion cannot be maintained because the articles have lost their character as chattels and become a part of the realty. It is settled in this Commonwealth that trade fixtures become part of the realty and are removable by the tenant during his term, and that they retain their character as realty until such removal. Guthrie v. Jones, 108 Mass. 191;Brown v. Wallis, 115 Mass. 156;Raddin v. Arnold, 116 Mass. 270;Noyes v. Gagnon, 225 Mass. 580, 114 N. E. 949. Ordinarily, an action of tort, the common law action of trover, will not lie for such trade fixtures before their removal. Guthrie v. Jones, supra; Raddin v. Arnold, supra; Barnes v. Hosmer, 196 Mass. 323, 82 N. E. 27;Commercial Credit Corp. v. Commonwealth Mortgage & Loan Co., Inc., 276 Mass. 335, 177 N. E. 88. If a tenant fails to remove trade fixtures during his term, or such further term as is allowed in certain cases, the right of removal is lost, and the tenant cannot thereafter claim the fixtures as against the owner of the realty. Wall v. Hinds, 4 Gray, 256, 272, 273, 64 Am. Dec. 64;Bliss v. Whitney, 9 Allen, 114, 85 Am. Dec. 745;Watriss v. First National Bank of Cambridge, 124 Mass. 571, 26 Am. Rep. 694;Noyes v. Gagnon, 225 Mass. 580, 585, 114 N. E. 949;Wright v. Michelman, 246 Mass. 401, 403, 141 N. E. 234. The foregoing settled principles of law are not questioned by the plaintiff but are fully recognized by him. His contention is that the defendant is estopped from asserting that the articles in question are part of the realty and hence the plaintiff is precluded from recovery. Upon the findings made by the trial judge the defendant's contention cannot prevail. It appears that the defendant's agent led the plaintiff's assignor to believe that the defendant did not assert any title to the fixtures, and referred him to a third person, when inquiry was made as to who owned them, from whom they were purchased by the plaintiff's assignor. The fact of purchase was reported to the defendant's agent before the lease was signed, and it does not appear that he made any comment which would lead the plaintiff's assignor to believe that the latter was not now the owner of the articles. The reasonable interpretation of the acts and conduct of the defendant's agent was that the articles were not a part of the real estate of the defendant, but were chattels belonging to another which were temporarily on the premises. The doctrine of estoppel is stated in Boston & Albany Railroad Co. v. Reardon, 226 Mass. 286, 291, 115 N. E. 408, and is quoted in McLearn v. Hill, 276 Mass. 519, at page 524, 177 N. E. 617, 619, 77 A. L. R. 1039: ‘In order to work an estoppel it must appear that one has been induced by the conduct of another to do something...

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23 cases
  • Vincent v. Plecker
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 13, 1946
    ...she would be estopped to set up her title against him. Raldne Realty Corp. v. Brooks, 281 Mass. 233, 183 N.E. 419;Looney v. Trimount Theatres, Inc., 282 Mass. 275, 184 N.E. 683. But at the time the defendant Plecker had no title. She had no concern with the sort of title the plaintiff inten......
  • K.B. v. D.B., 91-P-1224
    • United States
    • Appeals Court of Massachusetts
    • September 9, 1994
    ... ... Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123, 596 N.E.2d 989 (1992) ... See McLearn v. Hill, 276 Mass. 519, 525, 177 N.E. 617 (1931); Looney v. Trimount Theatres, Inc., 282 Mass. 275, 278, 184 N.E. 683 (1933) ... ...
  • Loranger Const. Corp. v. E. F. Hauserman Co.
    • United States
    • Appeals Court of Massachusetts
    • March 23, 1978
    ...doctrine of equitable estoppel. Calkins v. Wire Hardware Co., 267 Mass. 52, 68-69, 165 N.E. 889 (1929). Looney v. Trimount Theatres, Inc., 282 Mass. 275, 277-278, 184 N.E. 683 (1933). That doctrine differs from promissory estoppel primarily in that equitable estoppel permits recovery only w......
  • Vincent v. Plecker
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 13, 1946
    ... ... Raldne Realty Corp. v ... Brooks, 281 Mass. 233 ... Looney v. Trimount Theatres, ... Inc. 282 Mass. 275 ... But at the time the ... ...
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