241 Mass. 69 | Mass. | 1922
By a written instrument dated July 16, 1915, the defendant leased to Peterson and Steele certain premises for the term of five years beginning October. 1, 1915. The lease provided: “It is agreed between the parties hereto that any and all alleys which may be constructed by or for the party of the second part [Peterson and Steele^ in and upon said premises shall be deemed to be and be affixed to the realty and shall not be removed therefrom except upon the written order of the Lessor.” In January or February, 1916, Peterson and Steele, hereafter called the tenants, entered into possession of the premises and
In constructing the alleys a levelling strip called the foundation was laid. To this foundation, strips of maple were secured and the alleys, each weighing three thousand pounds, were fastened to the building by screws and “solidly built into the building.” Between the tenants and the owner of the premises, the alleys, in the absence of evidence showing a contrary intention by the parties, were of such a nature and so fastened to the building that they were a part of the real estate, although they were fixtures which could be removed during the -tenancy. Hanrahan v. O’Reilly, 102 Mass. 201. See Hook v. Bolton, 199 Mass. 244. Unless there was an agreement or evidence showing an intention that the articles were to remain personal property, they became
The fact that the conditional sale agreement was recorded under St. 1912, c. 271 (see now G. L. c. 184, § 13), does not help the plaintiff. That statute has application only to heating apparatus, plumbing, gas ranges, and other personal property of a like kind. See Babcock Davis Corp. v. Paine, 240 Mass. 438.
It follows that the agreement between the seller and the tenants, as against the owner of the building, standing by itself, did not give the plaintiff the right of removal. The bowling alleys were real estate and not personal property, and by the terms of the lease could not be removed. The defendant’s requests that because of the provisions in the lease the tenants could give the plaintiff no right to treat the alleys as personal property, or remove the same, should have been given, and the charge, so far as it was inconsistent with this request, was error.
There was evidence that in September, 1915, before the alleys were installed, a salesman of J. Magann and Company consulted the defendant and informed him that he was selling the alleys to the defendant on the conditional sale plan, the property to be owned by J. Magann and Company until paid for. If the jury believed this evidence, they might find that, with knowledge of the contract between J. Magann and Company and the tenant, the lessor permitted the vendors to place the alleys in the building in ignorance of the conditions and terms of the real estate lease; that the defendant was estopped to prevent the plaintiff from removing them; that under the circumstances it was the defendant’s duty to speak, and not by his silence lead the seller
Exceptions sustained.