Kimball v. Masters of the Grand Lodge of Masons, 131 Mass. 59

Kimball v. Masters of the Grand Lodge of Masons

131 Mass. 59 | Mass. | 1881

Erdicott, J.

The material facts, upon which this case arises, are as follows: The defendant leased certain rooms in its building to Copeland and Tarbell, who placed therein two showcases, the character of which it is important to notice. The base of the cases, to the height of three feet, was occupied by drawers; above were rows of shelves, with doors in front, about seven feet high, and mirrors four feet wide and seven feet high, placed in recesses and forming part of the cases. One case had one mirror and the other two. A cornice extended along the entire top, and there was a heavy moulding at the bottom of the cases. They stood upon the marble floor, and formed no part of the permanent finish of the room; but were fastened to the wall by nails. The room was large, and one of the cases was thirty feet and the other thirty-nine feet in length.

Copeland and Tarbell failed, and their assets were conveyed to trustees, who sold the same, including these cases, by auction, in December 1868. The cases were bid off by Williams and Everett. Some question seems to have arisen between the defendant and the trustees, in regard to the removal of fixtures, and an agreement was drawn up, wherein it appears that the defendant made no 'claim to these cases. The premises were thereupon surrendered. The defendant then executed a lease to the plaintiffs of the premises including the room in which these cases were at the time. The plaintiffs had no notice of the agreement, and nothing was said between the parties upon the question whether the cases were a part of the demised premises. Williams and Everett demanded them of the plaintiffs, and, upon refusal to deliver them, entered, without the plaintiffs’ consent, and removed them. The plaintiffs thereupon brought this action

*63We are of opinion that the presiding judge properly ruled that the action could not be maintained. It is evident from the description of these cases and from the manner in which they were placed in the room, taken in connection with the obvious purpose for which they were to be used,, that they formed no part of the realty, but were mere chattels or articles of furniture belonging to the tenant. Guthrie v. Jones, 108 Mass. 191. Towne v. Fiske, 127 Mass. 125. Park v. Baker, 7 Allen, 78. Wall v. Hinds, 4 Gray, 256. McConnell v. Blood, 123 Mass. 47. Their character as furniture is not changed by the fact that by reason of their size it was not necessary to paint and finish the wall behind them, which they concealed. Their removal therefore could not constitute an eviction of the plaintiffs from any portion of the demised premises as alleged in the declaration. Williams and Everett were mere wrongdoers, to whom the plaintiffs were not bound to yield, and against whom they could have maintained an action of trespass quare clausum fregit. They did not act under the authority of the defendant, and the act done by them was not of a permanent character, the effect of which was to deprive the tenant of the enjoyment of the demised premises or any part of them. Even if the defendant had removed these chattels, it would not have been a breach of the covenant for quiet enjoyment, but a mere act of trespass. Bartlett v. Farrington, 120 Mass. 284. Under a covenant for quiet enjoyment, the lessor does not covenant against the acts of wrongdoers; and, to constitute a breach of this covenant, the person who does the act must have some lawful interest or right in the realty whereby the tenant is evicted, and not merely a title to some chattel that happens to be upon it. “ A general covenant in a lease for quiet enjoyment extends only to entries and interruptions by those who have lawful title, but not by wrongdoers; for the tenant has his remedy by action for all tortious entries and disturbances.” Ellis v. Welch, 6 Mass. 246, 252. Sherman v. Williams, 113 Mass. 481. Gardner v. Keteltas, 3 Hill, 330. Howell v. Richards, 11 East, 633, 642. Dudley v. Folliott, 3 T. R. 584. Nash v. Palmer, 5 M. & S. 374.

Judgment on the verdict.