Luddington v. Goodnow
| Decision Date | 31 March 1897 |
| Citation | 168 Mass. 223,46 N.E. 627 |
| Parties | LUDDINGTON v. GOODNOW. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John H. Blanchard, for plaintiff.
John F Kilton, for defendant.
This is an action for the conversion of certain chattels in and about the Grand Opera House in Boston. The chattels had belonged to Mansfield & Magee, co-partners and lessees of the Grand Opera House. The plaintiff claimed under a sale by Magee of his half to Mansfield, and a later sale of the whole by Mansfield to the plaintiff. Mansfield surrendered the lease to the defendant, and the defendant took possession of the theater and the property. The case was tried before a judge, without a jury, and he found for the plaintiff subject to three exceptions, which are to be considered.
1. The first concerns the purchase by Mansfield from Magee. By an instrument under seal, Magee agreed that he would "not take or claim any part, share, or interest in said business or interfere in any way therewith." Testimony was admitted under exception that, after the instrument was executed, Mansfield noticed that the property in question was not mentioned, and spoke about it in the office of the lawyer who drew the instrument; that Magee said they would have no more trouble about it; and that both agreed that there was no need of drawing the instrument over again. It is objected that this was an attempt to modify the specialty by contemporaneous talk. But the testimony warranted a finding that the oral agreement was subsequent to the execution of the paper, and, if the paper did not cover the property, operated by way of gift, followed, as it was, by possession, or of sale in consideration of Mansfield's abandoning a claim to have the instrument modified, and therefore the evidence properly was let in.
2. The next exception is to a refusal to rule that the plaintiff had not made out a case. The particulars relied on concern the plaintiff's present right of possession, and the conversion by the defendant. The plaintiff, after the sale by Mansfield to him, took possession, and then took from Mansfield an instrument by which the latter purported to hire the property, at a monthly rent, for a year, with a right to repurchase for $700. Later, Mansfield notified the plaintiff that he was not in possession of the Grand Opera House. This fairly might be found to import what no doubt it meant,--a surrender to ...
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