297 Mass. 94 | Mass. | 1937
This is an action of contract brought in the Municipal Court of the City of Boston, in which the plaintiff seeks to recover $1,900 “for money had and received by the defendant from the plaintiff for the plaintiff’s use.” The answer is a general denial. When originally tried, the judge who heard the case found for the plaintiff for the amount claimed.
Subsequently, when the case came before the Appellate Division upon a report of the trial judge and a petition of the defendant to establish the report requested by it, the Appellate Division ordered a new trial. At the second trial the case was heard upon certain admitted facts and oral and documentary evidence. The report of the second trial contains copies of the plaintiff’s demand on the defendant to admit certain facts and the defendant’s answer thereto, and it also “contains all the evidence material to the ques
The lease and license agreements between the defendant and the plaintiff provide that the leased machinery should be used "only in the factory now occupied by . [the licensee] at Lynn.” The plaintiff occupied its factory in Lynn until November, 1931, when it discontinued operation
Fox testified that, shortly after the removal of the machinery to Gardner, he told one Durrell, an employee of the defendant at its Lynn office, that the plaintiff was in the Kuniholm Building. He also testified that the machinery was installed in the Kuniholm Building late in January, 1932; that the defendant’s machines when set up in the Kuniholm Building were adjusted by men sent by the defendant from its Marlborough office; that the defendant shipped merchandise by parcel post to that building; and that the plaintiff was charged for rents for machines for the months of January and February, including the time they were in the Kuniholm Building. In this connection Mr. Farr, the attorney for the defendant, stated that the officers of the defendant in the Lynn and Marlborough offices had “authority to ask . . . [licensees] about their changes in business.”
On February 24, 1932, some question having been raised as to the fire insurance coverage on the machines, the plaintiff sent a letter addressed to Durrell of the defendant’s Lynn office and reading as follows: “It is my belief that we have a letter from you to the effect that you carry your own fire insurance on these machines. Will you kindly verify this.” The defendant wrote, under date of February 26, 1932, as follows: “Replying to your letter of February 24, to the attention of Mr. Durrell, our announce
The defendant’s letter was received by the plaintiff on February 27, 1932. Shortly after noon on that day a disastrous fire occurred upon the plaintiff’s premises. The building was completely destroyed as were also the machines of the defendant. The remains of the machines covered by the lease and license agreements were dug out of the débris of the building and returned by the defendant to its plant at Beverly a few days after the fire. The plaintiff has not resumed business since the fire, but shortly thereafter assigned its fire insurance policies to Aaron Kobrin, a lawyer of Lynn, to collect the proceeds, pay the creditors of the plaintiff, and to return the surplus to it. All creditors except the defendant have been paid in full, and the surplus has been returned to the plaintiff’s stockholders.
“Debits Cbedits
Merchandise $119.10 Interest $85. 93
Transportation expense 174.50 Waiver of Royalties 360 .60
Unearned discount 20.93 Cash Deposit 1900. 00
Rentals & Royalties 422.06
Deferred License Fees 3202.00 $2346. 53
Amounts payable for loss by fire 8265.00
$12203.59
leaving a debit balance of $9857.06. As to this account the only items disputed by the plaintiff are 'Deferred License Fees — $3202.00’ and the ‘ amounts payable for loss by fire — $8265.00’, and as to these items no question was made as to the amounts.”
At the close of the second trial the defendant presented certain requests for rulings which, with the action of the judge thereon, are as follows:
''1. That upon all the evidence the plaintiff is not entitled to recover, (a) Because the 'cash deposit’ ($1900) sought to be recovered in this action was pledged with the defendant to secure the payment by the plaintiff of any and all sums due or which might thereafter become due from the plaintiff to the defendant, and there is no evidence which would warrant a finding that at the time of the institution of the action the plaintiff was not indebted to the defendant; (b) Because even if it be assumed that the plaintiff would be entitled to recover any balance resulting from the excess of the amount of the deposit above the indebtedness of the plaintiff to the defendant, it appeared that under the contracts between the plaintiff and the defendant the plaintiff, in addition to other items, was indebted to the defendant in the amount of Nine Thousand and Fifty Dollars ($9050), payable under the provisions of Article 3 of said contracts, as reimbursement to the defendant for the destruction of its leased machines; (c) Because
“2. That in order to be exonerated from the payment for destruction of the machines the plaintiff had the burden of showing that the leased machines were destroyed by fire without fault on the part of the plaintiff. ‘Given, but I find the burden sustained. ’
“3. That there is no evidence in the case which warrants a finding that the destruction of the leased machines was without fault on the part of the plaintiff. ‘ Denied. ’ “4. That the destruction of the leased machines by fire would not of itself terminate the license agreements under á proper construction thereof. ‘ Denied — Query — What does “proper construction” mean here?’
“5. That if the defendant offered to the plaintiff to replace the destroyed machines and such offer was refused, the contracts were terminated by the voluntary act of the plaintiff. ‘ Denied — Based on facts not found. ’
“6. That even if it be regarded that the destruction of the machines by fire terminated the lease contracts such a termination was embraced in the provisions of paragraph 14 of the contracts, and upon such termination the plaintiff was obligated to pay the defendant the sum of the ‘ Deferred License Fees. ’ ‘ Denied. ’
“7. There is no evidence in the case which warrants a finding that the plaintiff at any time before the institution of the action paid or offered to pay its indebtedness or any portion thereof to the defendant. ‘Denied.’
“8. That the removal of the leased machines to the Kuniholm plant and their operation there was in violation of the plaintiff’s obligations under the leases. ‘ Denied — I find it was with defendant’s approval and knowledge. ’
“9. That the destruction of the defendant’s machines by fire at the Kuniholm plant, where the machines were not
The trial judge found generally for the plaintiff in the sum of $1,690.10, and reported to the Appellate Division his action on the defendant’s requests for rulings. On October 28, 1935, the Appellate Division ordered a new trial "of the issue whether the fire of February 27, 1932, in which the defendant’s machines were destroyed or damaged, occurred without fault of the plaintiff, excluding from that inquiry the location in the Kuniholm Building rather than in the Dunn Building,” and directed that “If the fact stated be found in the affirmative, judgment is to be entered upon the finding hitherto made by the trial judge; if in the negative, judgment for the defendant.” The defendant appealed from this order.
A third hearing before a judge of the Municipal Court of the City of Boston was then held on the specific issue of the plaintiff’s fault in connection with the fire. At the close of this hearing, and before final arguments, the judge denied the defendant’s requests for rulings, to the effect that there was no evidence that the fire occurred without fault of the plaintiff; and made the following statement: "The cause was tried in accordance with the order of the Appellate Division. I find that the fire in which the defendant’s machines were destroyed or damaged occurred without fault of the plaintiff.” He found generally for the plaintiff "in the sum found by the trial judge in the last preceding trial.” The defendant being aggrieved by the refusal to rule as requested, the judge reported the case “to the Appellate Division for determination.” The “report contains all the evidence material to the questions reported.” The report was dismissed by the Appellate Division and the defendant appealed.
A lease and license agreement, the provisions
The defendant argues (1) that if the plaintiff was indebted to the defendant in any amount, the plaintiff cannot maintain this action to recover the pledged money; (2) that the plaintiff was indebted to the defendant under article 14 of the lease in an amount greater than the amount of the deposit; and (3) that the plaintiff is indebted to the defendant for the destruction of the machines by fire since the plaintiff did not show that the fire occurred without its fault. On this point the defendant contends that the unauthorized removal of the machines to the Kuniholm Building showed negligence on the plaintiff's part.
On the first point the defendant's argument is based on the theory that pledged property cannot be recovered by the pledgor until he has paid or tendered the amount of the debt secured or performed obligations secured. Reed v. Bristol County Realty Co. Inc. 250 Mass. 284, 287. In the case at bar, however, the defendant rendered to the plaintiff an account in which the cash deposit appeared as a credit to the plaintiff as against indebtedness claimed by the defendant to be owing to it from the plaintiff. The situation appears to resemble more closely a case where, after the pledgee has sold pledged property, the pledgor seeks to recover the surplus to which he is entitled. Stevens v. Bell, 6 Mass. 339, 343. As thus interpreted the action is maintainable. Hancock v. Franklin Ins. Co. 114 Mass. 155, 157.
Whether the plaintiff is liable under article 14 of the lease,
The defendant contends that it is for the plaintiff to show that the fire occurred without fault on its part before the waiver of the charge provided for in the event of destruction of machines by fire comes into operation. ■ By the use of the word “fault” it is assumed that the natural legal meaning of the word negligence was intended. See School District in Medfield v. Boston, Hartford & Erie Railroad, 102 Mass. 552, 554. On this question, at the outset, the defendant argues that negligence of the plaintiff is shown by the fact that it moved the machinery to the Kunihohn Building in Gardner without first having obtained written permission to do so. There was evidence that Durrell of the defendant’s Lynn office was told of the change to the Kuniholm Building, that machines were there adjusted by the defendant’s employees, that merchandise was sent there, and that rent for the machines covering 0the period of the plaintiff’s occupation of that building was accepted by the defendant. In addition, the defendant’s counsel made statements during the course of the trial from which it may be inferred that offices such as the Lynn and Marlborough offices of the defendant corporation had authority to ask licensee “about their changes in business.” These
The defendant contends finally that at both trials the plaintiff failed to sustain the burden of proving that the fire occurred without negligence on its part. It is assumed, because of the form of the writing waiving the charge provided for in the event of loss by fire, that the burden of proving the negative was cast on the plaintiff. The evidence for the plaintiff on this point may be summarized as follows: The factory building was an old, large, wooden building consisting of a basement and two floors. A small boiler house or room constructed of masonry adjoined a portion of the basement with which it was connected by a fire door. The basement was used for storage purposes, the portion next to the boiler room containing machinery not in use. Also in the basement were two steel drums set on metal frames and containing lubricating oil. There was nothing near these drums and there were no oily rags there. There were also in the basement some bales of fibre, left by a previous tenant. No new wiring had been installed in the basement nor was gas stored therein. The plaintiff employed a porter who cleaned up the factory each night and dumped the rubbish in a dump one hundred yards from the factory. A “No smoking allowed” rule was strictly enforced throughout the building. Shortly before the fire a fire inspector visited the premises, and found no fault with
In similar cases where a plaintiff had the burden of proving lack of negligence or due care on his part it was said that he could sustain the burden by showing facts from which due care on his part might fairly be inferred, or by showing in all the circumstances an absence of negligence. Hinckley v. Cape Cod Railroad, 120 Mass. 257, 262. So in proceedings under the workmen’s compensation act, an employee who has failed to give requisite notice and who must show that lack of notice did not prejudice the insurer is not required to exhaust the possibilities of prejudice and displace each one, nor is he bound to demonstrate the negative, but is required only to give evidence of facts from which a finding of lack of prejudice is fairly inferable. Kangas’s Case, 282 Mass. 155, 158. Hatch’s Case, 290 Mass. 259, 262. In a case the facts of which closely resemble those in the case at bar, where it was material for the plaintiff to show that .a fire was accidentally rather than intentionally caused, it was said that it was not necessary to show the exact cause of the fire, but that a finding
In the case at bar, the plaintiff has put in ample evidence of its general care, and it has also adduced evidence that when its engineer left the basement a few minutes before the fire everything was all right. The plaintiff has therefore put in sufficient evidence from which it may be fairly inferred that however the fire occurred, it occurred without negligence of the plaintiff, and the finding of the trial judge is not unsupported by evidence. It follows that the plaintiff is not liable for the charge provided for in case of loss by fire.
Order dismissing report affirmed.
The provisions covering the covenants of the licensee are summarized as follows:
Article 1 provides that property in the machines shall remain in the licensor, and that the machines will be used only in the licensee’s factory at Lynn.
Article 2 provides that the licensee shall keep the leased machinery in good working order.
*102 Article 3 reads: “The leased machinery at all times, until redelivered to the United Corporation as hereinafter provided, shall be held at the sole risk of the licensee from injury, loss, or destruction, and in case the same or any thereof shall be destroyed by fire or otherwise before such redelivery the licensee shall pay to the United Corporation in respect to each machine so destroyed the sum (if any) set opposite the name of such machine in column I in the foregoing Schedule of Machines as partial reimbursement to the United Corporation for such destruction, and the licensee shall forthwith return whatever remains of the machinery so destroyed to the United Corporation at Beverly, Massachusetts.”
By Article 4 the licensee is to pay any taxes on the machines.
Article 5 states the purposes for which the machines may be used.
Article 6 provides that the licensee shall pay as an initial license fee “the amount (if any) set opposite the name of such machine in column II in the foregoing Schedule of Machines.”
Article 7 provides for the payment as monthly rental of the amount set forth in column III of the schedule.
Article 8 provides for the payment of royalties or payments on each article in process of which the machines are used, and refers to columns IV, V, and VI of the schedule.
Article 9 provides that all payments under that lease shall be independent of payments under any other leases.
Article 10 gives the defeñdant the right to attach indicators to the machines.
Article 11 provides for the keeping of reports of the use of the machines.
Article 12 provides that the lease shall continue for ten years subject to termination by the licensor (A) in case of a breach of covenant, insolvency, etc.; (B) in case of bankruptcy or assignment for the benefit of creditors the lease shall be terminated unless the licensor shall elect otherwise; (C) in case the licensee has surplus machines the licensor can terminate as to those machines.
By Article 13, if upon expiration of the named term of the lease, machinery is not returned and its return not requested, the agreement is extended indefinitely as to term, but either party could thereafter terminate on sixty days’ notice in writing.
Article 14 reads: “Upon the termination in any manner whatever of the lease and license hereby granted or any extension thereof in respect to any machine hereby leased the licensee shall forthwith deliver such machine to the United Corporation, at Beverly, Massachusetts, complete and in good order and condition, reasonable wear and tear alone excepted, and shall pay to the United Corporation in respect to each such machine the amount (if any) set opposite the name thereof in column VII in the foregoing Schedule of Machines. The licensee shall also pay to the United Corporation such sum as may be necessary to cover replacement at the regular prices established by the United Corporation therefor of all broken or missing parts.”
By Article 15 the licensor is given the right upon termination to enter and remove machines.
Article 16 relates to the form of notice of termination by the licensor.
Article 17 reads: “None of the conditions or provisions of this agreement shall be held to have been waived by any act or knowledge of the United Corporation, its agents or employees, but only by an instrument in writing, signed by the president, a vice-president, the treasurer or an assistant treasurer of the United Corporation.”
Article 18 provides that the name of the licensor includes its successors and assigns, and that the provisions of the lease shall be binding on the licensee’s representatives.
By Article 19 prior licenses or leases are superseded.