Lufkin v. Spiller

Rugg, C.J.

This is an action of contract to recover for use and occupation of a passageway. One half of the passageway was owned by the plaintiff and the other half by the owner of an estate occupied as a stable. There was evidence tending to show that the defendant was in occupation of the stable and that the passageway was used in connection with the stable for the storage of wagons and carts; that the plaintiff told the defendant he should charge him for such use, to which apparently the defendant made no reply, and later, that the rent would be at a higher rate; and that the defendant then replied that he would not pay until some old iron was removed from the passageway. There was other evidence tending to exonerate the defendant from liability. The finding was for the plaintiff, the court ruling that there could be no recovery unless the plaintiff proved continuous occupation by the defendant. The general finding in favor of the plaintiff imported a finding of all subsidiary facts necessary to that result, which the evidence would support.

There was no error of law in denying the request that the plaintiff could not recover. It was a question of fact on all the evidence whether the defendant had conducted himself with reference to the use of the passageway, either in conversation or in action, so as to become liable personally for rent arising from its use for storage. For the same reason, there was no error of law in denying the request that" the defendant could not be held liable unless he was the owner of the business which used the passageway.

The remaining request, to the effect that the plaintiff could not recover unless he proved an express agreement with the defendant for the hire of the passageway, manifestly was unsound in law. Such a contract might arise by implication. Central Mills Co. v. Hart, 124 Mass. 123. Sellers v. Frank, 213 Mass. 298, 301.

Order dismissing report affirmed.