237 Mass. 60 | Mass. | 1921
The plaintiff, a tenant at will, and nurseryman, in occupation of the premises when the alumni association purchased the land, owned the personal property thereon consisting of “an office building, a packing shed, small greenhouse and outbuildings . . . and a considerable quantity of small trees and shrubbery set out and growing in the ground.” It appears from the auditor’s report that the association never claimed ownership of this property, but only requested him by letter to remove it “within the next thirty days, so that the contractor can have free sweep for construction work.” The plaintiff endeavored to have the time extended, but was told by the secretary of the association to see the defendant, who was to be the contractor. While the defendant testified at the trial before the court that he never authorized the plaintiff to remain in possession after the thirty days had expired, the jury on the auditor’s report could find he assured the plaintiff “that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be
The auditor’s findings, that the defendant’s foreman at the plaintiff’s suggestion removed a large quantity of stone from the land on which he was working, and dumped several loads upon an adjacent lot in the plaintiff’s possession, but so carelessly as to cause serious injury to the shrubs, was some evidence for the jury in support of the second count claiming damages for the negligent and tortious acts of the defendant’s servants. Lambert v. Robinson, 162 Mass. 34.
The exceptions therefore must be sustained, the verdict ordered for the defendant set aside, and judgment entered for the ■ plaintiff in accordance with the stipulation of the parties.
So ordered.