TOWN OF WARREN vs. MYRTLE P. BALL, executrix.

SPALDING, J. This action of replevin involves the ownership of two pieces of fire fighting apparatus of bygone days, known as hand tubs. The case was submitted to a jury who returned a verdict for the plaintiff. It is here on the defendant's exceptions to the denial of her motion for a directed verdict, to a ruling on evidence, and to the denial of certain requests for instructions.

There was evidence of the following: For many years prior to the transactions under consideration the plaintiff town had been the owner of two fire tubs: Quaboag no. 1 and Quaboag no. 2. Quaboag no. 1, the smaller of the two pieces, was acquired by the town in 1824, and Quaboag no. 2 was acquired in 1867. Both tubs had long ceased to be used for fire fighting. They were, however, used in town celebrations in 1941 and 1945. In 1945, there being no room to store them in the town barn, they were placed outdoors under tarpaulins. Included in the warrant for the town meeting in February, 1946, was an article "To see what action the town will take in regard to sale or disposal of two old fire pumps or take any action relative thereto." This article "was passed over at the town meeting." Thereafter, Charles W. Ball (from whom the rights of the defendant, Ball's executrix, are derived) [Note page351-1] "asked for [the tubs]." On April 3, 1946, pursuant to authority granted by the selectmen and to an order of the chief engineer of the town's fire department, the tubs were delivered to Ball's premises in a town truck. When they were delivered Ball told the assistant chief engineer that "he was very pleased to have them and would take good care of them." When the tubs were delivered to Ball they were in "very poor condition." According to a statement made by Ball prior to his death, the town had no place to store them, no one wanted them, and they "were about to be taken to the dump." When Ball asked for the smaller tub he was told by the chief engineer that if he wanted one he would have to take both. Ball restored the larger tub, Quaboag no. 2.

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The restoration involved making many parts for it, and painting it. One Lizak, a sign painter, was requested by Ball to do the lettering on the tub without compensation inasmuch as he (Ball) was "preserving something for the town of Warren," and Lizak complied with this request. In August, 1946, after the restoration of Quaboag no. 2, Ball rode in it in a town parade.

In 1957, Ball had an opportunity to dispose of the tubs to a person who would preserve them, and, through his wife, asked the town for a bill of sale. The selectmen and town counsel, however, "knew nothing about the tubs." In October of that year the town, through its chief engineer, made a demand for the return of the tubs and, according to the chief's testimony, he was told by Mrs. Ball that the town could not take them; "[it] would have to pay [a] storage charge for storing the pumpers." Mrs. Ball testified that she told the chief engineer at that time that the tubs belonged to her husband; that they were his "most prized possessions"; and that "he wasn't going to give them up unless he had to." This was the only demand made by the town for the return of the tubs.

1. In support of her contention that she was entitled to a directed verdict, the defendant argues that there was no evidence of a bailment of the tubs, that, even if there was, the demand for their return must be made within a reasonable time, and that a demand, as here, eleven and one half years later was not such a demand. The defendant urges that the demand, to be seasonable, must have been made within the period allowed by law for bringing an action of replevin. Under the law here applicable (see G. L. c. 260, Section 2, as it read prior to St. 1948, c. 274) this would be six years.

In Campbell v. Whoriskey, 170 Mass. 63, it was said at page 67, "We are of opinion that the true principle is that the time when the demand must be made depends upon the construction to be put upon the contract in each case. If the contract requires a demand without language referring to the time when the demand is to be made, it is as if the

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words `within a reasonable time' were found in it. What is a reasonable time is a question of law, to be determined in reference to the nature of the contract and the probable intention of the parties as indicated by it. Where there is nothing to indicate an expectation that a demand is to be made quickly, or that there is to be delay in making it, we are of opinion that the time limited for bringing such an action after the cause of action accrues should ordinarily be treated as the time within which a demand must be made." See Kelley v. Thomas G. Plant Corp. 274 Mass. 102, 106; Norwood Trust Co. v. Twenty-Four Federal St. Corp. 295 Mass. 234, 237. These principles are applicable here.

We are of opinion that there was evidence of a bailment. There was evidence that the town was in need of a proper place to store the tubs, that at the time the tubs were delivered to him Ball told the chief engineer that he would take care of them, and that when Ball asked Lizak to do the lettering on Quaboag no. 2 without compensation he stated that he was "preserving something for the town of Warren."

If, as the jury could have found, there was a bailment, Ball's possession was initially rightful. But within the principles stated above, the plaintiff was required to assert its rights within a reasonable time. The present action was brought promptly after a demand for the property had been refused. The question, then, is whether the evidence would warrant a finding that the arrangement of the parties should continue into the future for a considerable time before the plaintiff would be expected to demand the tubs. If such a finding was not warranted then, under the rule set forth in Campbell v. Whoriskey, 170 Mass. 63, 67, the demand would not have been made within a reasonable time, for the town is subject to the statute of limitations, which by analogy would determine the seasonableness of the demand. See Boston v. Nielsen, 305 Mass. 429, 431. If, however, such a finding was warranted, the statutory period is not controlling on the issue of seasonability. We

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are of opinion that such a finding was warranted. In other words, it could have been found that the transaction between the parties, being a bailment, was to continue into the future for a substantial period of time before the plaintiff would be expected to demand the return of the tubs. In the case of a bailment, or where elements of a trust are involved, there often would be no reason for the bailor or beneficiary to assert his rights with the promptness required in ordinary commercial transactions. The bailor or beneficiary would not ordinarily take steps to assert his rights until there had been a repudiation by the bailee or trustee. This is well illustrated in Campbell v. Whoriskey, 170 Mass. 63. In that case the plaintiff sought to recover money which she had left in the 1870's for safekeeping with her cousin, the defendant. In 1890 she demanded the money from the defendant, and, upon his refusal to give it back, she brought suit in 1895. It was held that the failure to demand the money earlier, in the circumstances, was not fatal to recovery. The court said at pages 67-68, "While it was undoubtedly contemplated that the defendant might use the money as his own, and that the relation of debtor and creditor should grow out of the transaction, an element of trust entered in, indicating an intention that the defendant should hold it for an indefinite time in the future . . .. Looking at their arrangement and their relations, we are of opinion that the plaintiff was not bound to demand her money within six years in order to save her rights, and that, under all the circumstances, her demand was made within a reasonable time." Similarly, in the case at bar there is nothing to indicate that if there was a bailment it was to be for only a limited time. The town apparently had no suitable place for the storage of the tubs. There thus was no reason for either party to have expected a demand for their return within the period of the statute of limitations. It cannot, therefore, be said that the plaintiff's demand was not made within a reasonable time.

The defendant next contends that Ball acquired ownership by adverse possession as matter of law. See Mulligan

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v. Hilton, 305 Mass. 5, 10, and cases cited. To acquire ownership in this manner the possessor must exercise dominion over the property in some way inconsistent with the rights of the owner, usually by acts establishing a conversion. Possession by a bailee or other person with the express or implied consent of the owner is not adverse. Am. Law of Property, Section 15.16. While the evidence establishes that Ball's possession for the statutory period was open and continuous, it falls far short of establishing as matter of law that such possession was hostile to that of the town and hence adverse. Until the plaintiff's demand was refused in October, 1957, Ball's possession could have been found to be consistent with a bailment. The defendant's exception to the denial of her motion for a directed verdict must be overruled.

2. The defendant excepted to the refusal to give certain requests for instructions. Requests 1, 2, and 3 in substance asked the judge to charge that, if Ball's possession of the tubs was wrongful from the beginning, no demand was necessary to start the running of the statute of limitations. There was no evidence that would indicate that the defendant's possession was wrongful at the outset. Hence the requested instructions would have had no relevancy and would have only confused the jury. The portion of the charge set forth in the footnote gave the defendant all that she was entitled to in view of the evidence in the case. [Note page355-1]

The questions arising from the refusals to grant the defendant's fourth and fifth requests have been covered in substance by what has been said in part 1 of this opinion. There was no error. We might add that the entire charge is before us and we are convinced that the jury received full and accurate instructions on the essential issues.

3. Entries in Ball's diary covering the period from April 3 to November 9, 1946, were admitted in evidence.

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We are concerned here only with the first entry which reads: "April 3, 1946, Had Quaboag #1 and #2 Hand fire tubs presented to me today by Mr. Carroll, Chief Engineer." The plaintiff moved that this entry be struck and the motion was allowed, subject to the defendant's exception. Ball having died, the entries in his diary, to the extent that they satisfied the statute, were admissible under G. L. c. 233, Section 65, as a declaration of a deceased person. Since the other entries were admitted, there being nothing in the record to show that the conditions of admissibility contained in the statute had not been satisfied, we must assume that they had been. O'Brien v. Bernoi, 297 Mass. 271, 274. And we assume without deciding that the entry was not offensive to the statute on the ground that it was an opinion or conclusion rather than a statement of fact. See Kulchinsky v. Segal, 307 Mass. 571. Compare Tafralian v. Metropolitan Life Ins. Co. 316 Mass. 429. We are of the opinion, nevertheless, that the allowance of the motion to strike did not prejudice the defendant. The word "presented" in its context in the excluded entry is somewhat ambiguous. It might connote a gift; that is its usual meaning. Or it might suggest something less, that is, a mere turning over of the tubs for purposes other than a transfer of ownership. If it meant that there was a gift of the tubs, and that would appear to be the purpose for which the defendant offered it, the evidence would not have aided her. The chief engineer had no authority to make a gift of the property of the town. See G. L. c. 48, Sections 45-52. Thus, even had the evidence been admitted, the case for the defendant would have been no stronger.

Exceptions overruled.