222 Mass. 192 | Mass. | 1915
The plaintiff, as trustee in bankruptcy of Dennis D. O’Connell, sues the defendant in tort for the conversion of forty-nine looms and the dressing, or preparatory weaving, dyeing and finishing machinery contained in the mill of O’Connell on July 30, 1913, the day he was duly adjudicated bankrupt. On August 7, 1913, the defendant, in foreclosure of a real estate mortgage given him by O’Connell on January 8, 1913, duly sold the estate and property definitely described therein, as also the property alleged to have been converted by the sale, under the claim that it was to be treated as real estate and as such was included, though not specifically mentioned, in the mortgage.
The estate described in the mortgage was purchased in 1900 by George J. Daniels and the bankrupt Dennis D. O’Connell, and thereafter was held by them as copartners until the dissolu
These machines, each weighing from twenty-eight hundred to three thousand pounds, were fastened to the floor by lag screws to keep them stationary and to prevent them from wabbling “ all over the floor.” Lag screws are six, eight or ten inches long, one quarter of an inch to two inches in diameter, and are like ordinary screws with the exception of the head, which is made of wrought iron. The looms and other machinery in controversy could be removed without any damage to themselves or to the building in which they were contained. The looms and other machinery were necessary to the conduct of a worsted mill, but were just as suitable for use in any other mill as in the firm’s mill.
Much of the machinery other than the looms was as heavy, or heavier, than the looms, was attached in like manner to the floor, and the firm’s right thereto was acquired by conditional sale.
On January 29, 1903, Daniels, in addition to his deed of the real
At the close of the evidence the plaintiff contended that the court ought to rule, as matter of law, that the machinery in controversy did not pass by the mortgage, and that a verdict should be directed for the plaintiff for $4,400 [the agreed value of the property in controversy] with interest from July 18,1913, the date of the entry to foreclose. The defendant contended that the court should rule as matter of law that the machinery in controversy was real estate and that a verdict should be directed for the defendant.
The presiding judge
Thereupon the judge directed a verdict for the plaintiff for $4,400 and interest, and reported the case to this court; judgment “to be entered upon the verdict, or for the defendant, or a new trial ordered as the case requires.”
It is-clear that the decisions fall into some one of three classes:
1. Those where the chattel has been so affixed that its identity is lost, or so annexed that it cannot be removed without material
2. Those articles which are manifestly furniture as distinguished from improvements. Southbridge Savings Bank v. Mason, 147 Mass. 500, 505. Hook v. Bolton, 199 Mass. 244, 247.
As regards these two classes the facts rebut all other evidence of intention to the contrary.
3. Those cases where intention is the controlling fact and where such fact is to be determined upon consideration of all the circumstances, including therein the adaptation to the end sought to be accomplished and the means, form and degree of annexation. “It is an intention which settles, not merely his own rights, but the rights of others who have or who may acquire interests in the property. They cannot know his secret purpose; and their rights depend, not upon that, but upon the inferences to be drawn from what is external and visible. In cases of this kind every fact and circumstance should be considered which tends to show what intention, in reference to the relation of the machine to the real estate, is properly imputable to him who put it in position.” Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 522.
In the case at bar it properly could not have been ruled that the machines had been so affixed to the real estate or to other chattels which were to be treated as real estate (Hopewell Mills v. Taunton Savings Bank, supra,) that they had lost their identity or had become incapable of removal without material injury to themselves or to the building to which they were attached. Nor could it have been ruled that they were not to be treated as real estate but were chattels. In view of the undisputed fact that the machines were not especially designed for use upon the premises, were not peculiar in their pattern, were easily removablé without injury to themselves or to the structure in which they were placed, were equally adapted for use in any other worsted mill, were purchased and sold from stock, were in large part held by the mortgagors upon a conditional sale title, were put into the mill before the execution of the mortgage to the defendant; in view also of the fact of the silence of the record upon the matter of the mortgagee’s knowledge or ignorance of the quality of his mortgagors’ title, and of the further fact that as between the members of the firm the machinery was treated as chattels when, upon the
We find no error in the admission or rejection of testimony prejudicial to the defendant.
In accordance with the terms of the report judgment is to be entered upon the verdict.
So ordered.
Chase, J.