Berry v. Friedman

192 Mass. 131 | Mass. | 1906

Sheldon, J.

The only questions argued by the defendant in this case are those which arise upon his demurrer, and apparently he did not make and now does not make any objection to a final decree being entered against him, as was done in the Superior Court, if his demurrer is not to be sustained.

The bill is somewhat inartificially drawn ; but construing all its averments together it substantially states the following facts: The plaintiff is a dealer in pianos, and in July, 1904, he leased a piano worth $265 to one Etta Bailey. She hired an apartment in a building in Chelsea owned by the defendant. By reason of the dimensions of the piano, she was unable to move it into this apartment except by enlarging a window which opened into it. The defendant allowed this to be done, “ permitted said opening to be made,” and promised her to give her permission to remove the piano in the same way whenever that should be necessary. Her lease now has expired, and the plaintiff holds full title to the piano, and has endeavored to remove it; but the defendant, while insisting that the plaintiff must remove it, refuses to allow this to be done in the only practicable way, by refusing to allow any opening to be made by which it can be removed. The piano is so constructed, being welded together, that it cannot be removed in sections without destruction, or in any way other than that in which it-was placed in the defendant’s house. The plaintiff offers to give, and it appears that he since has given, to the defendant a bond with sufficient sureties conditioned to make good any damages caused by the removal of the piano.

The defendant’s counsel contends that on these facts the plaintiff has a plain and adequate remedy at law. It is evident that the plaintiff could not obtain relief by an action of replevin ; for the officer serving such a writ, while he would have no difficulty in taking possession of the piano, would not have any greater ability to remove it from the defendant’s house and deliver it to the plaintiff than the plaintiff himself has. The officer could not complete the service of the writ. Maxham v. Day, 16 Gray, 213. If, however, the averments of the bill show that the defendant has converted the piano to his own use, then the plaintiff should seek his redress in an action for that conversion; for it does not appear that there is any such peculiarity in the construction of this piano that damages for its conversion would not be an adequate remedy. Machinists' National Bank v. Field, 126 Mass. 345, 349. Schwalber v. Ehman, 17 Dick. 314, 321. Paramore v. Fitzgerald, 67 Ga. 360. Johnson v. Connecticut Bank, 21 Conn. 148, 157. Caleb v. Hearn, 72 Maine, 231. Ideal Clothing Co. v. Hazle, 126 Mich. 262. Fuller v. Davis' Sons, 184 Ill. 505, 512. Seibel v. Siemon, 52 Mo. 363. Chambers v. Chambers, 98 Ala. 454.

It becomes material accordingly to determine whether the bill does charge a conversion of the piano by the defendant. It is evident that the plaintiff did not intend to make such a charge. He avers that the defendant requests him to move the piano ; the gravamen of his complaint is not that the defendant prevents him from removing it at all, but that the defendant refuses to let him make the opening in the defendant’s window which is essential for such removal. Under these circumstances, it would be putting an undue strain upon the language of the seventh paragraph of the bill to say that it charges a conversion by the defendant. Taking the averment in connection with the rest of the bill, we do not think that it appears that the defendant assumed to exercise control over the property or interfered with the plaintiff’s dominion over it. Polley v. Lenox Iron Works, 2 Allen, 182. Spooner v. Holmes, 102 Mass. 503, 506. Farnsworth v. Lowery, 134 Mass. 512. Brintnall v. Smith, 166 Mass. 253, 254. The defendant has not set up any adverse title of his own, as in Luddington v. Goodnow, 168 Mass. 223, or exercised any control over the property in denial of the plaintiff’s right, as in Scollard v. Brooks, 170 Mass. 445. According to the bill, he admits the plaintiff’s title, and calls upon the plaintiff to take away the property. This falls far short of what appeared in McKay v. Pearson, 6 Penn. Sup. Ct. 529; Nichols v. Newsom, 2 Murphey, 302; or Hughes v. Coors, 3 Col. App. 303, relied on by the defendant. Accordingly we do not think that it can be said that the plaintiff has a plain, adequate and complete remedy" at law.

There is nothing in the defendant’s contentions that the plaintiff’s title or the contract or lease of the piano given to Bailey, or the facts which constitute a breach of that contract or lease, are not sufficiently set forth. It is expressly averred that the lease became terminated and the title to the property became vested solely in the plaintiff. This is enough.

More difficulty seems at first sight to be presented by the defendant’s contention that he ought not to be prevented from exercising his legal right to resist any forcible trespass upon his estate. But it must be remembered that the defendant consented to the piano being put into his house in the manner in which the plaintiff desires to remove it, and that the defendant then promised that it might be removed in a similar manner. This promise was indeed made to Bailey and not to the plaintiff; but equity sometimes will enforce for the benefit of the owner of property or the holder of a claim or demand a promise made to another. Rice v. Dewey, 13 Gray, 47. Crowell v. St. Barnabas Hospital, 12 C. E. Green, 650. Halsey v. Reed, 9 Paige, 446. Powles v. Hargreaves, 3 DeG., M. & G. 430. It may be that the plaintiff here cannot rely upon the promise to Bailey, in the absence of any averment that it was made for his benefit or known to or acted upon by him; but it remains true that according to the averments of the bill, which are admitted by the demurrer, the defendant contemplated that this piano should be removed, when that became necessary, in the same way in which it had been brought into his house, by enlarging the opening of his window, and expressed a willingness that this should be done. Bacon v. Hooker, 177 Mass. 335, 338. Lambert v. Robinson, 162 Mass. 34, 37. Smith v. Hale, 158 Mass. 178. McLeod v. Jones, 105 Mass. 403. Doty v. Gorham, 5 Pick. 487. We see no reason why the plaintiff, having given to the defendant full security against all loss or damage, and seeking to do only what the defendant originally assented to, should’ not now be permitted to make the removal in this way, being the only way in which it practically can be done.

Decree affirmed.