215 Mass. 462 | Mass. | 1913
The defendant is the owner of a building of a part of which one Rose, a restaurateur, was tenant. The plaintiff, by virtue of a contract made with Rose, during his term installed a ventilator which was about thirty-five feet long and extended from the kitchen on the first floor on the outside of the building to its top. The main part of it was sixteen inches to eighteen inches in diameter, and was fastened to the brick work of the building by an considerable number of bolts or rivets. By an agreement
The only exceptions now relied on in substance relate to the refusal of the trial judge to find as a fact and rule as matter of law that the ventilator and its several parts were personal property. Plainly this ruling could not have been given nor was such finding required in law. There was a substantial attachment of the apparatus to the building. Generally whether an article has become so affixed to the building as to become a part of it is a mixed question of law and fact. Houle v. Abramson, 210 Mass. 83. Giving due weight to the favor with which the law regards the tenant as respects fixtures, there is nothing to take the case at bar out of that general rule. It cannot be said as matter of law that this was a personal furnishing removable as would be an article of ornament or domestic utility. There is some evidence to indicate that its use was intended to be restricted to the building to which it was fastened. If the ventilator be treated as a trade fixture, it was not removed during the term and hence, upon expiration of the term, if attached to the building, became a part of the freehold. Talbot v. Whipple, 14 Allen, 177.
Exceptions overruled.