BEMIS v. CURTIS

Conversion. Negligence.

At the trial of an action of tort for the conversion of certain nursery stock belonging to the plaintiff, there was evidence tending to show that the plaintiff carried on the business of a nurseryman upon premises which he occupied as a tenant at will, and that the stock alleged to have been converted had been growing in the soil on those premises for at least a year; that the property was purchased by a collegiate alumni association who did not claim title to the stock but who requested the plaintiff by letter to remove it "within the next thirty days," so that a contractor, the defendant, who was to work upon the property for the new owner, could "have free sweep for construction work;" that the plaintiff interviewed the association's secretary with a view to getting the time allowed for removal extended and was told to see the defendant; that the defendant assured the plaintiff "that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations which were to be conducted thereon by the defendant under his contract;" that thereafter the plaintiff gradually removed shrubs until, when the shrubs alleged to have been converted still were on the property, the defendant forbade the plaintiff "to touch or to take away the remainder of the shrubbery" and informed him "that he must now keep off the property;" that thereafter the defendant took most of the stock from the ground, baled it and took it away. Held, that a finding for the plaintiff was warranted.

At the trial of an action by a nurseryman against a building contractor for damage to nursery stock caused by alleged negligence of the defendant in the way in which he dumped stone and dirt upon it, there was evidence tending to show that the contractor was working upon land which was adjacent to land occupied by the plaintiff with the stock in question; that at the plaintiff's suggestion the defendant dumped the stone and dirt upon the land in the plaintiff's possession, but did so negligently and thus caused the damage which was the subject of the action. Held, that a verdict for the plaintiff was warranted.

BRALEY, J.

The plaintiff, a tenant at will, and nurseryman, in occupation of the premises when the alumni association purchased the land, owned the personal property thereon consisting of "an office building, a packing shed, small greenhouse and outbuildings . . . and a considerable quantity of small trees and shrubbery set out and growing in the ground." It appears from the auditor's report that the association never claimed ownership of this property, but only requested him by letter to remove it "within the next thirty days, so that the contractor can have free sweep for construction work." The plaintiff endeavored to have the time extended, but was told by the secretary of the association to see the defendant, who was to be the contractor. While the defendant testified at the trial before the court that he never authorized the plaintiff to remain in possession after the thirty days had expired, the jury on the auditor's report could find he assured the plaintiff "that he would extend him whatever courtesy he could in reference to the matter and would give him notice from time to time when the land which the plaintiff occupied would be needed for the operations which were to be conducted thereon by the defendant under his contract." The time for and process of removal having been thus prolonged, the plaintiff took away the buildings, and from time to time as the work progressed and with such promptitude as not to hinder the contractor, removed small quantities of shrubs, when without previous notice, the defendant's foreman forebade him "to touch or take away the remainder of the shrubery," and the defendant also informed him, "that he must now keep off the property." The defendant, an independent contractor, could make such arrangements as he pleased with the plaintiff, and his peremptory refusal under the circumstances to permit him with his men to enter for the purpose of immediately removing all the stock, and his subsequent taking of "most of the stock from the ground" which he "baled up" and took away, amounted to a conversion of the plaintiff's property entitling him to damages under the first count. Miller v. Baker, 1 Met. 27. Lorain Steel Co. v. Norfolk Bristol Street Railway, 187 Mass. 500, 506. McGonigle v. Belleisle Co. 186 Mass. 310, 313. See Lash v. Ames, 171 Mass. 487; Swift v. Boyd, 202 Mass. 26.

The auditor's findings, that the defendant's foreman at the plaintiff's suggestion removed a large quantity of stone from the land on which he was working, and dumped several loads upon an adjacent lot in the plaintiff's possession, but so carelessly as to cause serious injury to the shrubs, was some evidence for the jury in support of the second count claiming damages for the negligent and tortious acts of the defendant's servants. Lambert v. Robinson, 162 Mass. 34.

The exceptions therefore must be sustained, the verdict ordered for the defendant set aside, and judgment entered for the plaintiff in accordance with the stipulation of the parties.

So ordered.