COTE v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

[182 Mass. 290, 65 N. E. 400.]

CARRIERS, CONNECTING-Presumption as to Place of Loss. The presumption, where there are several connecting carriers and damage is suffered by goods, is that such damage is due to the last carrier. This rule applies to freight as well as to baggage. (p. 656.)

F. S. Hall, for the defendant.

A. Auger, for the plaintiff.

200 HOLMES, C. J. This is an action for damage to freight delivered by the plaintiff to the Boston and Main Railroad at Lawrence to be carried to New Bedford, and delivered by that road to the defendant for the latter to complete the transportation. The freight was in a sealed car, and it does not appear by which road the damage was done. The case was submitted to the superior court on agreed facts with power to draw inferences, and that court ordered judgment for the plaintiff. The 291 defendant appealed, rather in the hope that this court might discover some distinction between freight and passenger's baggage than on any articulate reason for supposing one to exist. We have failed to make the discovery. As was pointed out in Moore v. New York etc. R. Co., 173 Mass. 335, 337, 73 Am. St. Rep. 298, 53 N. E. 816, the socalled presumption that the harm was done on the last road, although started as a presumption of fact, has been fortified if not maintained on grounds of convenience. These grounds apply equally to freight.

Judgment for plaintiff.

Among Connecting Carriers, the one in whose possession goods are found damaged is presumed to have caused the injury: Gwyn Harper Mfg. Co. v. Carolina Cent. R. R., 128 N. C. 280, 83 Am. St. Rep. 675, 38 S. E. 894; Hinkle v. Southern Ry. Co., 126 N. C. 932, 78 Am. St. Rep. 685, 36 S. E. 348; Morgaton Mfg. Co. v. Ohio River etc. Ry. Co., 121 N. C. 514, 61 Am. St. Rep. 679, 28 S. E. 474. As stated by other authorities, the rule is that the injury is presumed to have occurred while the goods or baggage was in the hands of the last carrier: Moore v. New York etc. R. R. Co., 173 Mass. 335, 73 Am. St. Rep. 298, 53 N. E. 816; Texas etc. Ry. Co. v. Adams, 78 Tex. 372, 22 Am. St. Rep. 56, 14 S. W. 666; Savannah etc. Ry. Co. v. Harris, 26 Fla. 148, 23 Am. St. Rep. 551, 7 South. 544; Faison v. Alabama etc. Ry. Co., 69 Miss. 569, 30 Am. St. Rep. 577, 13 South. 37.

MOORE v. MANSFIELD.

[182 Mass. 302, 65 N. E. 398.]

LANDLORD AND TENANT-Failure to Let Tenant into Possession of the Whole Premises.—If a tenant leases the whole premises, but finds, upon entering, that one of the rooms is locked and contains goods belonging to the landlord, who, on demand, fails to deliver the key or the use of the room, there can be no recovery by the landlord on an express agreement, because he has not furnished the stipulated consideration, nor on any contract implied for benefits actually received, because the failure to furnish the whole was due to his own willful fault. (p. 657.)

P. A. Kiely, for the plaintiff.

J. C. Johnston, for the defendant Mansfield.

302 HOLMES, C. J. This is a bill to reach and apply the proceeds of a judgment recovered by the defendant Mansfield to the payment of a debt alleged to be due to the plaintiff for use and occupation. The bill was dismissed by the chief justice of the superior court, and the facts found by him were reported under the statute, substantially as follows: The defendant hired of the plaintiff an entire house by a parol lease, and took possession. At the time, the attic was locked and contained goods belonging to the plaintiff. The defendant did not find this out at first, but when he did he asked for the key and the use of the attic, but never got it while he occupied. the house. The judge found that there was a partial eviction and dismissed the bill, seemingly on this ground, and the further one that the equitable process given by the Revised Laws, chapter 159, section 3, clause 7, to reach and apply certain property "in payment of a debt," would not be available upon a claim for an unascertained amount for use and occupation. The question is whether the facts found show the decree to have been wrong.

303 We say nothing about the latter ground, inasmuch as we are of opinion that the former is good in substance, so far as appears from any facts stated in the report. The plaintiff contends that there was no eviction because the defendant never had possession of the room: Townsend v. Nickerson Wharf Co., 117 Mass. 501; Vanderpool v. Smith, 1 Daly, 311. If the question were material, it would raise the difficulty that while the defendant had possession of the whole land and of the room on the outside considered as an inclosed cube, yet if the

Am. St. Rep., Vol. 94-42

analogy of the cases on larceny by carriers breaking bulk were followed, he would not have possession of the contents of the room; and, by the same argument, perhaps not of the inside of the room itself: Y. B. 13 Edward IV, 9, pl. 5; Fairfax, J., in Keilw., 160, pl. 2; 8 Edward II, 275; Fitz. Abr., Detinue, pl. 59; 2 Bishop's Criminal Law, 8th ed., secs. 834, 860. The true reason appears from the old books. Perhaps possession by the tenant would be presumed until the landlord's refusal gave an expressly adverse character to the landlord's conduct, on the ground that the tenant lawfully might have unlocked the door. But it does not matter whether the refusal to give up the room was a failure to perform the whole contract from the beginning, or a partial eviction after performance at the outset. The difference would be material only if there were a question of waiver involved. But there is no such question in the case. The tenant entered not knowing that the room was locked, and no fact later than the entry is recited which implied a waiver. All that appears is that the failure to open the room continued during the tenancy, and that the tenant insisted upon his rights. There being no waiver, the plaintiff could not recover on the express contract because he had not furnished the stipulated consideration, and he could not recover upon an implied one for the benefit actually received because the failure to furnish the whole was due to his own willful fault: Leishman v. White, 1 Allen, 489; Royce v. Guggenheim, 106 Mass. 201, 202, 8 Am. Rep. 322; Smith v. McEnany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781. It may be that in this class of cases the old common law is adhered to a little more rigidly than in some others: See Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455. The absence of a written lease makes no difference: Colburn v. Morrill, 117 Mass. 262, 264, 19 Am. Rep. 415.

The distinction taken by Taylor on Landlord and Tenant, eighth edition, 304 section 379, between eviction and refusal to put the tenant in possession of some privilege which he ought to have enjoyed, very likely is sound with regard to the cases which the author cited and had in mind; that is to say, with regard to cases where the tenant entered and occupied the demised premises, and there was a subsequent failure to perform a covenant for an improvement or one affecting the enjoyment of the premises: Etheridge v. Osborn, 12 Wend. 529; Chicago Legal News Co. v. Browne, 103 Ill. 317, 320. See, also, Allen v. Pell, 4 Wend. 505. And so it might be where

there was a known failure at the outset to give possession of all the stipulated land, and the entry of the tenant showed a waiver of compliance with the strict terms of the lease. Decree affirmed.

▲ Landlord who has failed to keep his contract to deliver complete possession to his lessees cannot recover from them for the use and occupation of part of the demised premises: McClurg v. Price, 59 Pa. St. 420, 98 Am. Dec. 356. A partial eviction is generally held to suspend the obligation to pay rent: Smith v. McEvany, 170 Mass. 26, 64 Am. St. Rep. 272, 48 N. E. 781; monographic note to Minneapolis etc. Co. v. Williamson, 38 Am. St. Rep. 491.

NASON V. TOBEY.

[182 Mass. 314, 65 N. E. 389.]

LANDLORD AND TENANT-Manure, When does not Belong Wholly to the Former.-When animals are collected on land in excess of the number which it is capable of supporting, and they are kept there and fed upon feed purchased for some other purpose than is incident to agriculture, the landlord is not entitled to the whole of the manure produced. (p. 660.)

W. S. Peters and H. J. Cole, for the plaintiff.

No counsel appeared for the defendant.

315 HOLMES, C. J. This is an action for the conversion of some manure, brought by an outgoing tenant against his landlord. On the plaintiff's testimony he had piled up in the cellar of the barn and outside, when he left, thirty-five cords of manure, two cords of which he purchased, and the rest of which was made during his tenancy, more than half, it would seem, at the lowest estimate, from hay and grain bought by him. The plaintiff was engaged in the milk business and seems to have had more cattle on the farm than it could have supported. When he undertook to treat the manure as his own, the defendant claimed it and forbade him to sell it. At the trial the presiding judge ordered a verdict for the defendant, and the plaintiff excepted.

We are of opinion that the exceptions must be sustained. Undoubtedly manure made in the ordinary course of husbandry

belongs to the landlord: Daniels v. Pond, 21 Pick. 367, 32 Am. Dec. 269. And it may be that under some circumstances it would belong to him, even if made from hay furnished by the tenant: Lassell v. Reed, 6 Greenl. 222; Lewis v. Lyman, 22 Pick. 437, 442. But, when animals are collected on land in excess of the number which it is capable of supporting, and they are kept there and fed upon purchased food for some other purpose than as incident to agriculture, a different rule applies: Pickering v. Moore, 67 N. H. 533, 68 Am. St. Rep. 695, 32 Atl. 828; Gallagher v. Shipley, 24 Md. 418, 429, 87 Am. Dec. 611. See Fay v. Muzzey, 13 Gray, 53, 56 (2), 74 Am. Dec. 619; Fletcher v. Herring, 112 Mass. 382, 384. It may be that if a question of apportionment were before us, it would be proper to take into account, on the defendant's side, that the milk sold from the farm was a substantial drain on the land, but we have to consider only whether it appears that the plaintiff could recover nothing, as matter of law. On the facts stated he had a right, if not to the whole pile of manure, to some ascertainable proportion of it which could be measured off to him. The defendant prevented him from taking any part, and claimed the whole. It was going too far to say that the plaintiff could recover nothing: Pickering v. Moore, 67 N. H. 533, 536, 68 Am. St. Rep. 695, 32 Atl. 828. Exceptions sustained.

Manure made upon a farm by the consumption of its products in the ordinary course of husbandry is a part of the realty, and cannot be sold or carried away by the tenant without the consent of the landlord. But manure made upon a farm from products not produced thereon is not a part of the realty, and may be held by the tenant: Pickering v. Moore, 67 N. H. 533, 68 Am. St. Rep. 695, 32 Atl. 828; note to Kittredge v. Wood, 14 Am. Dec. 397.