286 Mass. 602 | Mass. | 1934
The plaintiffs allege in substance in this suit in equity that they leased certain premises from the defendant for a term of years; that the defendant has wrongfully withheld from them possession of their goods, wares and merchandise constituting their stock in trade in the leased premises, and has excluded them from gaining access to their leased premises for the purpose of removing their personal property; that the defendant had no lawful right thus to distrain their property; that by such unlawful
The judge who tried the case made a report of material facts and an order for final decree. In substance he found that the plaintiffs from and after May 15, 1932, failed to pay the rent reserved in the lease and to pay for electricity furnished to the demised premises as stipulated in the lease. On or about November 1, 1932, the defendant turned off the supply of electricity to the premises and thereafter entered upon and took possession of the premises for breach of the covenant to pay the rent reserved, as provided in the lease, and for the purpose of terminating the lease, and put a padlock on the door of the store. Subsequently, and after this suit was instituted, the plaintiffs with the consent of the defendant removed their merchandise from the store. At the trial the plaintiffs conceded that there is no longer occasion for a decree for the return of the merchandise but
A final decree was entered adjudging that the defendant wrongfully withheld from the plaintiffs their goods so that they could not be replevied, and that the defendant owes the plaintiffs for damages suffered by them by reason of such withholding the sum of $98.12, and ordering payment thereof with interest together with costs in a specified sum. The appeal of the defendant brings the case here with full report of the evidence.
The evidence, largely from witnesses heard orally by the trial judge, need not be narrated. It is enough to say that it has been carefully examined. It fully justifies the findings made. Those findings cannot be pronounced plainly wrong. They must stand and be accepted as true for the purposes of this decision. Harvey-Watts Co. v. Worcester Umbrella Co. 193 Mass. 138, 142. Lindsey v. Bird, 193 Mass. 200. Donnelly v. Alden, 229 Mass. 109, 114. Even if the defendant was warranted under the lease in repossessing itself of the demised premises for breach of the covenant by the lessees to pay rent, there was ample evidence that the defendant unlawfully prevented the plaintiffs from obtaining possession of their merchandise in the store and retained the same
The circumstance that after the lapse of several weeks their goods were returned to the plaintiffs does not affect their right to damages, although entitled to weight in mitigation of damages. The plaintiffs did not seek the difference in market value at the time the goods were converted by the defendant and when they were returned. That is a rule frequently applied. Jackson v. Innes, 231 Mass. 558, 560. They did not try this case on that theory. That is not the only rule of damages. See C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220, at pages 235-238, where the subject is discussed at large. Interest on the value of the property detained was a proper element for consideration in the conditions here disclosed. It is allowed not as interest but as a part of the plaintiffs’ damages. Frazer v. Bigelow Carpet Co. 141 Mass. 126. Ainsworth v. Lakin, 180 Mass. 397, 402. Cochran v. Boston, 211 Mass. 171, 172. H. D. Foss & Co. Inc. v. Whidden, 254 Mass. 146, 152. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446, 451.
Interruption of business caused by the unlawful detention of the stock of the plaintiffs used in conducting retail or wholesale trade is a factor rightly to be considered in assessing damages in a case like the present. This is an attempt to recover for injury to the orderly conduct of business and not for profits lost. Antokol v. Barber, 248 Mass. 393, 396. Whitcomb v. Reed-Prentice Co. 262 Mass. 348, 360.
The specific evidence touching the damages arising from the interruption of business was not very definite or clear. In the nature of things it would be difficult to prove where the business had not been long established and was not
The trial judge ruled that the counterclaim of the defendant for money due it from the plaintiffs for rent reserved in the lease and for electric light furnished them could not be enforced in this proceeding. It is provided by Rule 32 of the Superior Court (1932) applicable to suits in equity: “The answer, without cross bill, must set up any counterclaim, against any one or more of the parties, arising out of the transaction which is the subject matter of the suit, which might be the subject of an independent suit in equity. The answer may set up (a) any counterclaim of a legal nature, against any one or more of the parties, arising out of such transaction, or (b) any counterclaim against the plaintiff alone, not arising out of such transaction, which might be the subject of an independent suit in equity . . . .” Plainly the counterclaim alleged against the plaintiffs by the defendant in its answer is purely contractual in nature. It consists of two debts arising under the lease, one for rent, the other for electric light furnished by the defendant. These are not the subject of an independent suit in equity. They are foundation for an action at law alone. Therefore, they do not fall within the first sentence or (b) of the second sentence of Rule 32. The question is whether, being a “counterclaim of a legal na
It is clear that the counterclaim of the defendant for rent and the sale of electric light does not arise out of equitable replevin or out of damages flowing from the unlawful detention of a stock of merchandise and the consequent interruption of business in which it was used. They are transactions utterly different in character. Even though neither transaction might have come into existence if the lease had never been made, these diverse causes of action cannot properly be held to arise out of the transaction which is the subject of the suit of the plaintiffs.
We are of opinion, however, that this point is not open to the plaintiffs. It is provided by Rule 26 of the Superior Court (1932) that, while in general the plaintiff may not file any reply to an answer, if “a counterclaim is included in the answer in equity, a party against whom such . . . counterclaim is asserted shall reply within ten days after receipt of the copy of such . . . counterclaim sent to him under Rule 21.” It does not appear in the record before us that any such copy was sent to the plaintiffs and no reply appears to have been filed by them. The report of the evidence shows that evidence was introduced at the trial without objection or exception by the plaintiffs, showing the amount due from them to the defendant for rent and electric light. This constituted a waiver by the plaintiffs of objection to the counterclaim of the defendant based on the ground of want of equity. Baker v. Langley, 247 Mass. 127, 132. Martin v. Murphy, 216 Mass. 466, 468. Pothier v. Doucette, 276 Mass. 326, 332. Adams v. Silverman, 280 Mass. 23, 28. Carleton & Hovey Co. v. Burns, 285 Mass. 479.
The result is that the decree must be reversed. A new decree may be entered establishing the amounts due the plaintiffs from the defendant as already found, with correction as to interest, and containing a new paragraph establishing the amount due from the plaintiffs to the defendant for rent and electric light and ordering execution to issue in favor of the defendant for the balance due, without costs to either party. The details may be settled in the Superior Coprt.
Ordered accordingly.