CHARLES P. TALBOT & another vs. OLIVER M. WHIPPLE.

TORT for the conversion of a wooden building and a machine called a callender, with fixtures appertaining thereto. The following facts were agreed in the superior court:

Carroll & Thompson, formerly partners in business, were, while they were such partners, tenants at will of the defendant of certain land and buildings, and of certain water-power connected therewith, owned by the defendant. They carried on the business of dyeing and bleaching cotton and woollen fabrics in and upon the said premises, and erected thereupon a wooden building, used by them for a dry-house, seventy-five feet in length, thirty feet wide, and about thirty-five feet in height, boarded and clapboarded on the outer sides and ends, the roof boarded and shingled, and the inner sides and ends thereof lathed and plastered; a brick chimney and furnace were in the building, having their foundation set in the ground; the furnace was used for generating heat for drying purposes; the

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building had no cellar under it, and it was fastened to the ground by means of twenty-six iron bolts, passing through the lower timbers or sills of the building, into as many stones or rocks in the ground, one or more of which were natural or ancient rocks, and on which the sills of the building rested, a few inches above the top of the ground. The building was so slightly constructed that it could not have been removed from the defendant's premises without a large expense in strengthening it.

The callender, so called, was a large machine of iron and steel, of the weight of about six tons, formerly owned by Carroll & Thompson, and used by them in their business, and was placed and set up by them in one of the buildings owned by the defendant, of which they were tenants at will as aforesaid, on a stone and mortar foundation erected by them, about eight feet long and six feet wide, built up to the height of about eight feet from the bottom of the cellar, under the building, and to within about six inches of the top of the first floor of said building; an opening or hole through the floor boards and floor timbers in the first floor was cut, about eight feet in length and about six feet wide; over the top of this foundation, two sticks of timber or thick plank were laid and imbedded in the masonry thereof, and the bottom of the frame of the machine was let into this opening in the floor, and rested on the timbers imbedded in the top of the foundation, and the floor was fitted close around the bottom of the frame of the machine; a hole through the boards and some of the timbers in the second floor of the building was also cut to set up the machine, the top of which extended into the second story; the machine was braced and bolted to various parts of the building, to render it stiff and firm in its position, so that it could be operated; some of the bolts passed through the girt timbers of the building, and entirely through one side of the building, and incisions were made in some of the outside boards thereof; and the box, supporting one of the shafts of the machine, was set in one of the partition walls. When the machine was removed from the building which was about three years since, by a person to whom the

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defendant had previously conveyed the premises, it was necessary, to effect such removal, to take the machine to pieces, and to take up the boards of the lower floor, and to cut into the partition wall of the building, in which the box was set as aforesaid, for the purpose of removing the same; it was also necessary, in disengaging the bolts from the building, to take off some of the outside boards and to cut some of the timbers.

In May 1857, after the callender had been set up in the building, and after the dry-house building had been put upon the land on which it was erected as aforesaid, Carroll & Thompson mortgaged to the plaintiffs the callender and dry-house building to secure a promissory note given by them to the plaintiffs for $1200, which mortgage was duly recorded. The plaintiffs never foreclosed this mortgage, and never took possession of the mortgaged property.

Soon after making said mortgage, the partnership between Carroll & Thompson was dissolved, and Carroll purchased Thompson's interest in the business and property of the firm, and thereafter carried on the business in his own name, and on his own account. On January 2d 1860, Carroll was owing the defendant a large sum for the rent of the premises, and after a delay of two or three days granted by the defendant, on the 4th or 5th of the same month, Carroll, without saying anything to the defendant, and without paying his rent, stopped his work and business, and left and abandoned the premises with the intention of never returning to them; and he never did return to them. At the time Carroll so abandoned the premises, he locked all the doors except the back door in the main building, and left the keys of said doors hanging up in said building by the side of the main front entrance; and left all the machinery and fixtures used by him in his business on the premises, among which was the callender and said dry-house building; but he took with him his books of account and papers. As soon as the defendant ascertained that Carroll had abandoned the premises, which was about the 6th or 7th of January, he took possession of the premises, entering the main building through the door, which Carroll had left unlocked, and retained possession thereof until he sold the same, about three years thereafter.

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No written notice was ever given by the defendant to Carroll to quit the premises for the non-payment of the rent, or because he desired to terminate the tenancy of Carroll therein; and no written notice was ever given by Carroll to the defendant that he had left, or intended to leave the premises; but Carroll never claimed the possession or occupancy of said premises, nor any part of them, after he abandoned them.

On the 2d of March 1860, Carroll commenced proceedings in insolvency, and in the same month an assignee of his estate was chosen, to whom an assignment of his estate was duly made. But the assignee never had possession, nor claimed the possession or occupancy of the premises, or any part of them.

The rent due from Carroll to the defendant has never been paid. About the 1st of April 1860, the plaintiffs demanded of the defendant the dry-house building and callender aforesaid, and he refused to deliver them.

Upon these facts judgment was rendered in the superior court for the defendant; and the plaintiffs appealed to this court.

D. S. Richardson, for the plaintiffs.

S. A. Brown, for the defendant.