Taylor v. Dexter Engine Co.

C. Allen, J. By the amended declaration, the plaintiff sought to recover “ for warehouse room furnished by the plaintiff for the storage of an engine, the property of the defendant.” This is according to the form contained in the schedule of forms appended to § 94 of the Pub. Sts. e. 167. At the outset, the engine had been lawfully put into the basement of the plaintiff’s building, but, upon a failure of the tenant of the premises to pay rent, the plaintiff took possession, and notified the defendant corporation that, if it did not remove the engine, he should make a certain charge to the defendant for every day it remained there. The engine was left there awhile longer. At the trial, which was without a jury, and which resulted in a finding for the plaintiff, the defendant contended that the plaintiff was not entitled to recover, under the pleadings; and at the argument in this court the defendant supports this contention, on the ground that the bill of particulars, which is for the “ use of store basement,” is descriptive of a claim for use and occupation. It is true that the bill of particulars would be good under the original count for use and occupation; but it is equally good under the amended count. The defendant now further contends that the facts stated in the judge’s report of the case were insufficient to support this count. But no such question appears to have been taken at the trial, and the report is not made with reference to any such question. Besides, we think the facts are sufficient, even as stated, and a promise to pay for storage might [615] fairly be implied from them. 2 Greenl. Ev. § 108. Horton v. Cooley, 135 Mass. 589. It is suggested that the defendant might have intended to abandon the engine to the plaintiff, instead of paying for the storage. But the judge might properly find the contrary. It is to be inferred that the defendant finally removed it. No error appears in the finding for the plaintiff. Judgment on the finding.