286 Mass. 345 | Mass. | 1934
This is an action of replevin. The defendants assert a lien for storage. The finding was for the plaintiff. The controversy arose in this way: The plaintiff was tenant of a suite of rooms in an apartment building in Cambridge under a lease for a term of years from the Harlow Realty Company. In November, 1931, the lessor entered upon the demised premises and terminated the estate for breach of covenants and conditions of the lease. At that time the plaintiff was, and for two months prior thereto had been, absent from the Commonwealth and the lessor did not know where he was. The lessor removed the effects of the plaintiff from the demised premises and placed them, in the name of and for the account of the
The single question for decision is whether there was error in denying the request of the defendants for the ruling that, by the terms of the lease, the lessor having a right to remove the furniture, in the absence of the plaintiff had implied authority to place it in storage for the plaintiff.
It is manifest that the lessor had a right, for breach of conditions of the lease, to enter upon the demised premises to take possession of the same and to remove therefrom the property of the plaintiff. If the lessee had been nearby, his goods could simply have been set out of doors without liability even though damage to them ensued because of weather conditions. Clark v. Keliher, 107 Mass. 406, 409. If the plaintiff as lessee had been present at the time and had expressed a wish against the removal of the goods to the warehouse, or had sought to retain the possession of them for himself, the retention of the goods by the lessor for a moment longer than was necessary to remove them from the demised estate against the will of the plaintiff would have been a conversion. McGonigle v. Belleisle Co. 186 Mass. 310. The plaintiff, however, was absent from the Commonwealth. The lessor did not know where he was. The demised premises consisted of a suite of rooms in an apartment house. Simply to set the goods on the sidewalk or in the street under existing conditions of travel and traffic would have constituted a public nuisance unless removed without much delay. They could hardly have been thus left without strong likelihood of theft of easily
Order dismissing report reversed.