Towne v. Fiske

• Decision Date: 28 June 1879
• Parties: William J. Towne v. John M. Fiske
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 125

William J. Towne v. John M. Fiske

Supreme Court of Massachusetts

June 28, 1879

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Suffolk. Tort for the conversion of a hot-air furnace and pipes, and of certain gas-fixtures, attached by the defendant, a deputy of the sheriff of Middlesex, on a writ in which William Claflin was plaintiff and Robert S. Webster and Sophia G. Webster, his wife, were defendants, and afterwards sold on execution.

At the trial in the Superior Court before Putnam, J., it appeared that, in August 1874, Robert S. Webster made a verbal contract with Claflin, by the terms of which the latter was to convey to Mrs. Webster a parcel of land in Newton on the performance by her of certain conditions; and under which Webster and his wife entered upon the land in September 1874, and occupied the house thereon, until May 2 or 3, 1877, when they moved away, never having performed the conditions, and the deed was not delivered; and that, while they were in possession, they put the furnace and gas-fixtures into the house.

The plaintiff put in evidence a bill of parcels of the furnace and gas-fixtures from Mrs. Webster to him, dated March 30, 1877. The only evidence as to Mrs. Webster's title to the gas-fixtures was the testimony of George P. Clarke, who testified that he sold them to Mr. Webster and Mrs. Webster paid for them; that he charged them to Mr. Webster on his book of accounts, and subsequently, at Mr. Webster's request, made a bill of them to Mrs. Webster.

The plaintiff testified that, on March 30, 1877, he agreed in Boston with Mr. Webster to buy the furnace and gas-fixtures; that, a week or ten days afterwards, he went to the house where they were, examined the articles, and took possession of them; that Mrs. Webster pointed them out, and he saw them all; "that he took possession of everything there was delivered to him as much as could be in the house;" that the bill of parcels was made out a day or two afterwards, and dated back to the time of the bargain; that the price was not positively agreed upon until he had seen the articles.

The evidence in regard to the manner in which the furnace and the gas-fixtures were attached to the house was as follows: The furnace was a portable hot-air furnace, made of iron in the form of a cylinder, and set upon the earth on the bottom of the cellar under the house; and, after being so set, the cellar bottom was concreted up to and around the furnace, the concrete forming the floor of the cellar; the cold-air box of the furnace was put through the wall of the cellar, and plastered into the wall; it opened into the cold-air chamber in the base of the furnace by removing a panel made for that purpose, without being otherwise attached or fastened to the furnace; the furnace was connected with registers in the first and second stories of the house by hot-air pipes, for the purpose of warming the house. The registers were set in soapstone collars in holes in the floor made for them, and to which they fitted. The hot-air pipes were of tin, and those connecting with the second story of the house went from the first to the second floor inside of and between the partitions or ceiling, which were of lath and plaster. The furnace was of cast-iron and covered with galvanized sheet-iron. In the top of the covering were holes in which collars were set for each of the hot-air pipes, into which they fitted. The hot-air pipes were not fastened to the furnace or register boxes, excepting that they fitted over collars like the ordinary joints of a funnel. The smoke pipe was of galvanized iron, ten or twelve feet long, slipping into a collar in the furnace and at the other end slipping into the chimney in the cellar, without being otherwise fastened thereto. The furnace weighed from seven to eight hundred pounds, and rested on the earth under the cellar, of its own weight, and was not otherwise fastened to it. The evidence was conflicting on the point whether the concrete floor of the cellar was so attached to the furnace that the furnace could be lifted out of the hole through the concrete on which it stood without breaking or disturbing the concrete; but there was evidence that, when it was removed, the concrete was not disturbed.

The gas-fixtures were screwed to gas-pipes fixed in the house, to which they fitted, and they were further fastened, so as to prevent the escape of gas through the joints, with a preparation of boiled oil and red-lead put upon the screws before they were screwed to the pipes, in the usual manner of putting on gas-fixtures.

The defendant gave in evidence a special order of attachment, issued by the Superior Court for the county of Middlesex, in an action pending in that court, May 3, 1877, with the officer's return thereon, which was served by attaching the articles in question, on that day, by the defendant, and duly returned. On the day of the attachment the Websters were moving out of the house, and the defendant put a keeper in custody of the articles until they had vacated the house that day, and then took the keys of the house, locked it up and kept the keys. Afterwards, and while the house was so locked up, Arthur C. Conant, employed by the plaintiff, went to the house for the purpose of removing the furnace to the plaintiff's place, and, finding the house locked, borrowed a key of a neighbor, and by means of the key opened the house and removed the furnace to the plaintiff's shed. The defendant, upon finding the furnace had been removed, retook it, and returned it to the house. Judgment was rendered in the action in which the precept was issued in favor of Claflin against the Websters for $ 1081 debt and $ 21.19 costs, upon which execution was issued, and the furnace and gas-fixtures were seized and sold upon it by the defendant to Claflin in part satisfaction of the execution. Aside from the removal and return of the furnace as above stated, neither it nor the gas-fixtures were ever removed from the places where they were set or fastened in the house, and they remained, after the alleged sale from Mrs. Webster to the plaintiff, as they then were attached to the house. On May 5, the plaintiff demanded the furnace and pipes and gas-fixtures of the defendant, after the return of the furnace to Claflin's house as above stated.

The defendant requested the judge to instruct the jury as follows: "1. The plaintiff is not entitled to maintain this action upon the evidence. 2. The plaintiff is not entitled to recover in this action for the alleged conversion of the furnace. 3. The plaintiff is not entitled to recover in this action for the alleged conversion of the cold-air box, or hot-air pipes, or smoke pipe, or registers, or soapstone frames. 4. The plaintiff is not entitled to recover in this action for the alleged conversion of the chandeliers and gas-fixtures. 5. Upon the evidence in this case, the furnace, cold-air box,...