205 Mass. 592 | Mass. | 1910
There was evidence of an agreement between the plaintiffs and the defendant, by the terms of which the latter contracted to sell to the former certain machinery, including the boiler and engine in question, then in a factory of the defendant, and that the plaintiffs paid the defendant the full contract price therefor and took the receipt of October 23, 1902. The machinery was to be regarded, when severed, as personal property. Under such a contract the plaintiffs were licensed to enter upon the land, sever the articles covered by the contract and carry them away as their own property. Claflin v. Carpenter, 4 Met. 580. Douglas v. Shumway, 13 Gray, 498. In
If both of these questions are answered in favor of the plaintiffs, then there was a promise on the part of the defendant to pay to the plaintiffs a sum of money equal to the value of the boiler and engine upon a certain contingency; and the promise was upon a sufficient consideration, namely, the relinquishment of the right given to the plaintiffs by the contract to enter upon the premises and sever and carry away the boiler and engine as their own property. It might have been further found that the sale by the defendant to Grant was a sale within the meaning of the contract and consequently that in the absence of some other ground of defense the defendant became answerable to the plaintiffs for the reasonable price of the boiler and engine.
It is said that the defendant could not have given the right to sever the fixtures without the consent of the mortgagee. Be it so. It does not appear that the mortgagee ever made any objection, although the work of removal had been going on from time to time for about a year; and there is nothing to show that it ever would have made any objection. Indeed in view of these facts, taken in connection with the relation sustained by the defendant to the indebtedness secured by the mortgage deed, it might well be found that the mortgagee as such had but little interest in the matter as against that of the defendant, and was willing that the articles should be removed.
The fact- that the property had been sold for taxes was not conclusive against the maintenance of the action. The defendant had not been disturbed in his possession. The plaintiffs were engaged in removing the articles in the exercise of a right claimed by them, and, so far as they knew, their claim was just and legal at least as against the defendant with whom alone they were dealing. The owner of the tax title did not attempt to interfere in the matter so far as appears by the record, and there is nothing to show that he cared anything about it.
The defendant further urges that even if the question is one of fact the plaintiffs have failed to state the case properly, or in other words that the case proved is not the case alleged in any of the counts. But no question of pleading was expressly raised at the trial; and where the general nature of the case stated in the pleadings is seen and the trouble is simply that it is imperfectly stated, a general ruling that upon the evidence the action cannot be maintained raises of itself no question of pleading. As was said by Holmes, J., in Tangney v. Sullivan, 163 Mass. 166, “ The ruling asked dealt with the evidence, not with the pleadings.” See also McLean v. Richardson, 127 Mass. 339; Batchelder v. Batchelder, 2 Allen, 105; Carpenter v. Fisher, 175 Mass. 9. The case of which there was evidence as above outlined was substantially within the (( four quarters ” of the fourth count, although there imperfectly stated.
Exceptions sustained.