Chamberlain v. Neale

91 Mass. 410

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1864
• Status: Published

Opinion

Chapman, J.

The lease of the furniture to the plaintiff gav> her a special property in it, and a right to the possession of it For a violation of this right by the geñeral owner she may maintain an action of tort.. Roberts v. Wyatt, 2 Taunt. 268. Spoor v. Holland, 8 Wend. 445. Under the instructions of the presiding judge, the jury must have found that at the time when the officer took the property her right of possession had not terminated. If, in order to entitle himself to be furnished with his meals under the contract, it was the duty of Adams to advance a certain sum of money to the plaintiff, and he refused on request to furnish the money, the refusal of the plaintiff to furnish the meals so long as he thus refused would not be a violation of the contract on her part, and would not authorize him to treat it as rescinded. The jury must have found that such was the contract, and that he had not kept it on his part. The instructions were therefore sufficient, and the defendants were not entitled to the instructions prayed for.

Exceptions overruled.