Antoni v. Belknap, 102 Mass. 193

102 Mass. 193 | Mass. | 1869

Wells, J.

At the trial in the superior court, the presidirg judge ruled, and instructed the jury in substance, that, undnr the authority given by Joseph Antoni, the lease of the premises made in his behalf by Harvey to the defendants was bindir g upon him and justified the acts done by the defendants.

We do not think that the testimony of Harvey, as stated in the bill of exceptions, established an authority sufficient for that purpose. It appears to us to limit the agency, and the authority of the agent, to the period of the absence of Joseph from the country. His return terminated the agency; and his demand upon the defendants and entry upon the premises put an end to whatever estate the defendants had acquired therein. Upon the facts of the case as stated, the defendants would be liable for nominal damages at least. Whether they are liable for the value of the building removed by them, the facts reportea do not enable us to determine. Exceptions sustained.

At the new trial, before Putnam, J., there was evidence substantially as at the former trial, concerning the title of the plaintiffs in the land, the occupancy of the defendants, the return of Joseph Antoni, his demand for possession in April or early in May 1867, a few days after his return; and also evidence as follows: “ The original entry of the defendants upon the land was in May 1865 ; and in the same year they erected upon it a large building for the storage of ice. At the time of Joseph’s return, this building was packed full of ice, containing two thousand tons or more. The building was erected upon the ground, with no stones or other foundations under the sills, except a wooden block under each corner. The sills themselves were set into the ground upon a layer of charcoal, to keep them from rutting, at depths variously estimated by the witnesses, at six inches in some places to three feet in others, according to the unevenness of the ground, and, on the outside, were banked up with soil to prevent the circulation of air under them. The e 'idence tended to show that the defendants continued to occupy this building for the storage of ice until it was removed as hereinafter stated; and George M. Dimmock, one of the defendants, testified that, with the exception of the sale of one hundred tons, which they made out of this lot, for export, in consequence ol the demand of the plaintiffs upon them, they did not remove the ice from the building, and made no attempt to do so, faster than was necessary for the daily retail supply of their customers in Springfield. On the morning of Monday, July 22, they having carried away the last of the ice on the preceding Saturday, the building was taken down and carried away by them. The plaintiffs offered no evidence that the defendants could in any way have got the ice out faster than they did, or that they could have removed the building quicker. But the plaintiff himself and other witnesses testified that the defendants got the ice away as soon as possible after his demand upon them for possession. There was also evidence that the ice would have become porous, and of little value, if removed from this to any other building at that season of the year". The precise time when the building was removed did not appear, but the evidence showed that it was taken down in a few hours, and could have been built in one or two days.”

The defendants sought to justify their acts under the lease from Luke Harvey, which they put in evidence as at the former trial; and also under “ a verbal authority ” from Paul Gari, a member of the firm of Chici & Gari. Harvey was called as a witness, and testified “ that Antoni told him, when he was going to Italy, that he wanted him to pay taxes on the land and to take charge of it until his return, and to sell it if he could find a purchaser, and, in case he sold it, to write to Chici & Gari, and they would make a deed, and also told him to use it to the best advantage to make it pay.” And Gari testified to what authority concerning the land was originally given by Antoni to Chici & Gari; and that Antoni also gave to Chici “ a power of attorney in writing to sell and convey the premises by deed,” and renewed this power to Gari in 1861, after the death of Chici, which occurred in 1860. The written power was put in evidence; but it, and further details of Gari’s testimony, and some other evidence, offered by the defendants in confirmation of Gari’s testimony and excluded, are now immaterial.

“ The defendants contended that the building was not a fixture, as between landlord and tenant, and at least that they had a right to remove it during the continuance of their tenancy, and, if the tenancy was determinable upon a contingency, that it could be removed within a reasonable time after the defendants knew of the happening of the contingency ; and that whether or not it was removed within a reasonable time, under the evidence in this case, was a question for the jury, with proper instructions from the court; and they claimed that, if the tenancy was terminated upon Antoni’s return to this country, the building was removed within a reasonable time after knowledge »f it came to the defendants, and that, if the defendants were trespassers in removing the building, the measure of damages would be simply the diminution in value of the premises by reason of the entry and removal; ” and they asked for special instructions to the jury concerning what rights were acquired from Harvey or from Gari. These instructions the judge refused to give, and they are now immaterial.

The judge ruled “ in substance as follows: That there was no evidence of any authority in Harvey to rent the premises for a period which could extend beyond the time of Antoni’s absence ; that there was no evidence that the defendants had any legal authority from Gari which would justify their acts, even if Gari undertook to give it, whether they claimed to act under an authority direct from Gari, or as ratifying the lease of Harvey ; that, if he had the authority to ratify such lease, there was no evidence of any such ratification ; that the written power to Gari, which was long before this leasing, revoked all verbal authority to Gari to lease, if he had any; that the building, though a fixture, could be removed by the defendants, provided it was done in a reasonable time after the termination of the tenancy ; that the question of whether or not it was removed within a reasonable time after the termination of the tenancy was for the court and not for the jury, there being no dispute about the facts; and that it was not removed within a reasonable time; that upon the whole case the defendants were liable; and that the rule of damages would be the value of the building removed.” The jury found for the plaintiffs accordingly, and the defendants alleged exceptions, which were argued at this term by the same counsel.

Wells, J.

At the former hearing of this case, it was held that the authority which Joseph Antoni gave to Harvey did not enable him to lease the premises for a term which should extend beyond the .period of Antoni’s absence from the country. The testimony at the last trial, including that offered by the defendants and excluded, fails to show any greater authority in support of the lease than was produced at the former trial. Aside from the written power of sale, (which is limited expressly to a sale,) it does not appear that Gari had any greater authority <rom Antoni, in relation to these premises, or that he attempted to confer any greater authority upon Harvey than that which Harvey received directly from Joseph Antoni. It is not necessary, therefore, to discuss more in detail the various rulings and instructions asked for and refused, or those given, so far as they relate to the main question of right to the possession of the land.

The defendants’ tenancy, under the lease from Harvey, being terminated by the return of Joseph Antoni and his demand of possession, they became mere tenants at sufferance, entitled to such reasonable time to remove themselves and their property from the premises as the nature and circumstances of the case required.

Upon the question of reasonable, time, the case is stated as follows: “On the morning of Monday, July 22, they having earned away the last of the ice on the preceding Saturday, the building was taken down and carried away by them. The plaintiffs offered no evidence that the defendants could in any way have got the ice out faster than they did, or that they could have removed the building quicker. But the plaintiff himself and other witnesses testified that the defendants got the ice away as soon as possible after his demand upon them for possession.” We do not think that, upon this statement, the court below were warranted in ruling that the removal was not made in a reasonable time. Although a considerable time had elapsed, (perhaps two months, but the testimony reported does not fix it definitely,) yet, considering the nature and quantity of the property to be removed, and the absence of evidence that any other mode of removal was practicable, the court are of opinion that the mere lapse of that period of time is not sufficient to overcome the force of the statement above quoted.

At the former hearing, the case presented no such ground for regarding the delay as reasonable; and there was an apparent liability of the defendants for at least nominal damages. But it was then stated that “ there was evidence tending to show that this building, as originally constructed, and up to the time of its removal, was not a fixture to the freehold.” If it was personal property, there might be no damages beyond a nominal sum. Upon the case as it now appears, the building is manifestly a tenant’s fixture, liable to be removed during the term of the lease, or, when the lease is terminated as this has been, wjthin a reasonable time afterwards. Penton v. Robart 2 East, 88.

As it appears to the court, upon the case stated in the exceptions, that the building was removed within a reasonable time, the verdict must be set aside, and a new trial had. The heirs of Paul Antoni had no better right to retain the building than their cotenant. Rising v. Stannard, 17 Mass. 282. If it were otherwise, having joined in this action, they can recover only upon a joint interest. Exceptions sustained.