Handforth v. Jackson

C. Allen, J. At the trial, the plaintiff contended that the defendant’s agreement to withdraw from the ice business in Greenfield was illegal and void, but he does not insist upon that in this court. The limitation of space saves the agreement from being in illegal restraint of trade. See Bishop v. Palmer, 146 Mass. 469, and cases there cited. But the plaintiff’s main contention before us is, that the ice-houses were real estate, and so did not pass to him; and that the defendant by his deed to Mrs. Boutwell conveyed the title to her, and thus cut off the plaintiff’s title to them, and that therefore the defendant should be held to have rescinded his agreement with the plaintiff, and that upon such rescission the plaintiff may recover the value of the property delivered by him to the defendant, less the value of what he received from the defendant. The grounds upon which the decision in the Superior Court rested are not stated in the report, but the facts, which are stated in detail, not only warrant a finding, but we think sufficiently show, that the ice-houses were personal property, and that the title to them passed to the plaintiff. The first ice-house was built by the defendant while he was a lessee of the land upon which it stood. The next three were built by him after he and Bar dwell became owners of the land, with the consent of Bardwell, who acknowledged that they belonged to the defendant as his individual property, with the right to remove them. Under this state of things, the plaintiff and the defendant entered into the agreement of December 3, 1886, by [154] which the ice-houses were to become the property of the plaintiff. On the same day, the defendant and Bard well executed the lease of the land to the plaintiff, in which they in express terms declared the ice-houses to be the property of the plaintiff, and agreed that he might remove them at or before the expiration of the lease; and the plaintiff thereupon entered into possession of them. There was thus at all times a distinct understanding on the part of the owners of the land that the ice-houses should be and remain personal property; and this was sufficient to make them such. Howard v. Fessenden, 14 Allen, 124, 128, 129. Korbe v. Barbour, 130 Mass. 255. Mrs. Boutwell took her title with knowledge of the lease to the plaintiff, and thus must be held to have known that he was the owner of the ice-houses, and she took no title to them. It thus appears, upon the facts stated in the report, that the plaintiff has had all that he bargained for from the defendant, except two days’ work with a double team; and this work he has never asked the defendant to perform. He had the ice tools, the ice-houses, the good will of the defendant’s business' without interference from the defendant, and three days’ labor with a double team. Now the plaintiff seeks to recover from the defendant, not damages for a breach of the agreement on the part of the defendant, (though the original declaration would seem to have been framed in that aspect, and thus to affirm the agreement,) but the value of the property delivered by the plaintiff to the defendant after deducting the value of the tools and labor received, making no allowance for the ice-houses,’ and saying nothing about the value of the good will of the business. There are several sufficient answers to this. In the first place, it does not appear that the defendant has in any respect failed to keep his part of the agreement, he never having been asked to perform the two remaining days’ labor with a double team. In the second place, the plaintiff has not put, nor attempted nor offered to put, the defendant in the same position in which he stood at the outset, as he must do before he can recover back the consideration paid by him, as upon a rescission. The defendant would be entitled to have his property restored to him, not to have its value fixed by a jury. Coolidge v. Brigham, 1 Met. 547. Morse v. Brackett, 98 Mass. 205. Bal [155] lou v. Billings, 136 Mass. 307. Finally, the plaintiff has had the benefit of the good will of the defendant’s business, which cannot now be restored. Bassett v. Percival, 5 Allen, 345. Judgment for the defendant.