Towne v. Fiske , 127 Mass. 125 ( 1879 )

Soule, J.

The first, second, seventh, and eighth requests by the defendant were properly refused. There was evidence on each of the matters involved, proper for the consideration of the jury in determining a question of fact. It would have been error in the court to rule, as matter of law, in accordance with either of these requests. The same is true as to the fourth request. The fifth request, so far as it relates to the cold-air box, the hot-air pipes, the registers and the soapstone frames, became immaterial, because the court ruled, in accordance with the third and sixth requests of the defendant, that no recovery could be Ind for either of those articles. The furnace was a portable furnace, there is no evidence that it had any peculiar adaptation to the house in which it was placed, or was essential to the enjoyment of the estate, or that it was intended otherwise than as furniture, in the same sense in which a stove is furniture. The court therefore properly refused to rule that it was a part of the realty. McConnell v. Blood, 123 Mass. 47. The ninth request was properly refused. It assumes as proved certain things of which there is no evidence. And, even if all that it assumes were true, it would not necessarily follow that the furnace was a part of the realty. That part of the request relating to the other articles named in it became immaterial under the rulings made, and nothing was included in the verdict for those articles.

Gas-fixtures, whether in the form of chandeliers suspended from the ceiling at the top of the room, or projecting as brackets from the perpendicular walls, though attached to the gas-pipes by screws, and made tight by cement, are in the nature of furniture, and do not lose their character as chattels by reason of the manner in which they are affixed. Guthrie v. Jones, 108 Mass. 191. The tenth request was therefore properly refused.

The eleventh was not called for by, and was not appropriate to, the evidence in the case. It nowhere appears from the testé many of any witness, that the only things done by way of delivery of the chattels to the plaintiff were those recited in the request. It was properly refused.

There is nothing in the bill of exceptions to show that the twelfth request was adapted to the evidence in the case. The mere fact that a suit was pending against Mrs. Webster would not make the retention by her of the goods sold prima facie evidence of fraud. And the bill does not show that the other dements of the situation stated in the request existed.

There is another view of the case, so' far as regards the claim )f the defendant that the furnace was a part of the realty. If it was so, the defendant did not acquire any special property in it when he made the attachment, because it was real estate of the plaintiff in the writ which he was serving. When the plaintiff removed it, he did no ivrong to the defendant, however he may have trespassed on Claflin’s rights. When he carried it away, severed from the land, it was personal estate in his hands, to which he had a better right, having the possession, than a stranger had. The writ gave the defendant no right to take it, for the wrongful act of the plaintiff in severing it from the land did not make it the personal property of the Websters, the defendants in that writ. The defendant, however, took the furnace from the plaintiff, and attempts to justify under that writ. The justification fails, if the furnace was a part of the realty, and the plaintiff might maintain his action for the conversion of the furnace, afterward sold by the defendant on the execution against the Websters, on the strength of his possession merely. Winship v. Neale, 10 Gray, 382. Shaw v. Kaler, 106 Mass. 448. Harring-ton v. King, 121 Mass. 269. In this view of the case, no harm would have come to the defendant from an erroneous ruling by the court as to whether the furnace was a part of the realty or not. Exceptions overruled.