Needham v. Hill , 127 Mass. 133 ( 1879 )

Soule, J.

Under the most favorable construction for the defendant which can be given to his so-called lease to the plaintiffs, they became tenants in common with him of the “ printing-office,” or printer’s implements, consisting of the articles specially enumerated in part, and partly described in general terms in the lease. While they were such cotenants, and had fully complied with all the terms of the contract under which they held, the defendant unlawfully entered the premises of which they had the exclusive control, and effectually destroyed the usefulness of the “ printing-office,” by so mutilating the press that it was unfit for use in consequence of the removal by him of essential parts of it. He also carried away several fonts of type. The articles which he removed were incapable of use by him. Those which he left were incapable of use by the plaintiffs. The establishment was put by him into such condition as to preclude any future enjoyment by the plaintiffs of the “ printing-office,” or of the chattels of which it was composed. It is well settled that, when a tenant in common of chattels has destroyed them, or sold them, or so appropriated them to his own use as to render any future enjoyment of them by his cotenant impossible, he has so converted them to his own use that an action of trover, or of tort in the nature of trover, may be maintained by his cotenant against him. Daniels v. Daniels, 7 Mass. 135. Weld v. Oliver, 21 Pick. 559. Delaney v. Root, 99 Mass. 546. Warner v. Abbey, 112 Mass. 355. This is precisely the position into which the defendant has brought himself. The ruling of the learned judge who presided at the trial in the Superior Court, that the plaintiffs could not recover on their counts in tort, was erroneous, and they 'are entitled to a New trial.