Assumpsit, for the use and occupation of a blacksmith shop, built by the plaintiff in 1874 upon land of the defendant’s wife, and with her assent. Plea, the general issue, with a brief statement of the statute of limitations, also of title to the shop in the defendant and in his wife. Writ dated February 21, 1883. Facts found by the court. The plaintiff occupied the shop until January, 1875, when he rented it to the defendant, who paid the rent for the first quarter.
Good law ✅— No negative treatment on recordhow we know
Decided 1884-06-05
How this case has been cited
Cited by 3 later decisions — most recently June 1980
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
Whether the circumstances attending the occupancy of the shop by the defendant from the fall of 1877 to the commencement of this proceeding were such as to warrant an inference that he was to pay the plaintiff for its use, is a question of fact
(Bank
v. Getchell, 59 N. H. 281, and
Chamberlin
v.
Donahuer
44 Vt. 57) which we refuse to consider.
Fuller
v. Bailey, 58 N. H. 71;
Lefavor
v. Smith, 58 N. H. 125.
¶2
The shop was a personal chattel
(Dame
v. Dame, 38 N. H. 429)
;
and we discover no ground for holding that it “ became the property of the defendant, or of his wife, by the plaintiff’s neglect to remove it in January, 1875.” So far as appears, he was not even asked to remove it.
¶3
Nor does the amendment present any difficulty. More than six years before the date of the writ, the defendant promised to pay the plaintiff rent for the shop; but within six years he refused to fulfil his promise, claimed the shop as his property, and converted it to his use. Under these circumstances, the plaintiff was properly allowed to amend his declaration by adding a count in trover
(Rutherford
v. Whitcher, 60 N. H. 110) alleging a conversion within six years. On that count, and upon competent evidence, the court found the fact of conversion, not before but within the time alleged, and assessed the plaintiff’s damages at §300, and for that sum he is entitled to judgment.
