177 Mass. 111 | Mass. | 1900
The plaintiff, by a written lease, dated August 18, 1896, let to the defendant a shop and land in Westfield, at a rent of $25 a month. The lease was to run from August 1, 1896. Either party had a right to terminate the lease by giving thirty days’ notice in writing. This action is brought to recover the rent for the month of September and for eleven days in October, when the defendant’s tenancy ended by a notice given in accordance with the provision of the lease. No question is made as to the plaintiff’s right to recover the amount sued for; and the only question is as to the right of the defendant to set off a claim for storage of an engine and boiler from September 19, 1896, to October 11,1896, twenty-two days, at $2 per day. The evidence showed the following facts.
At the time the premises were leased there were in the shop an engine, a boiler, and certain other articles, the property of one Humphreyville, a former lessee, which had been previously attached by the defendant, and he had obtained a license from Humphreyville to use the engine and boiler, while under attachment. The defendant did so use them until September 19, 1896, when the plaintiff, who had a mortgage upon the engine and boiler from Humphreyville, dated August 28, 1895, served upon the defendant the notice provided by the Pub. Sts. c. 161, § 75, informing the defendant that she held a chattel mortgage upon the engine and boiler, stating the amount due thereon, and demanding payment thereof. The defendant, on the day the notice was served, notified the plaintiff in writing that he had dissolved his attachment, and also notified her to remove immediately the engine and boiler from the premises, and the
On these facts the judge ruled, as matter of law, that the defendant was not entitled to recover on his claim for storage; and the case comes before us on the defendant’s exception to this ruling. We are of opinion that the ruling was right. By the terms of the mortgage, the mortgagor was entitled to retain possession of the engine and boiler, until some breach of condition of the mortgage by him ; and although the attachment by the defendant gave the mortgagee the right to take immediate possession of the chattels, no such possession was taken: The defendant after he dissolved his attachment could not deliver the chattels to the mortgagee, for they belonged to the mortgagor, until the mortgagee saw fit to take possession of them under her mortgage. If the defendant did not care to keep the chattels and use them under his license, he should have notified the mortgagor, who owned them. . He could not by storing the chattels create a lien upon them. Storms v. Smith, 137 Mass. 201. Howes v. Newcomb, 146 Mass. 76. Lynde v. Parker, 155 Mass. 481. Field v. Roosa, 159 Mass. 128.
The case is materially different from Taylor v. Dexter Engine Co. 146 Mass. 613. In that case the plaintiff was the owner of the building. The defendant was the owner of an engine which was in the building by virtue of an arrangement between the defendant and a tenant of part of the building. Subsequently the plaintiff took possession of this part for non-payment of rent, and notified the defendant to remove the engine. In the present case the plaintiff was not the owner of the engine and boiler, but was merely a mortgagee who had not taken possession.
The principal contention of the defendant is based upon the latter part of the Pub. Sts. c. 161, § 75, which provides that, if the amount due the mortgagee is not paid or tendered to him within ten days after the demand, “ the attachment shall be dis