The defendant has done nothing that deprives him of his right to rely on the contract. The suit which he brought prior to this was upon a later contract, and against parties not identical. Besides, in his declaration in that case, in stating inducements, he took pains to aver that there was no right to sue upon this contract in this country. The second suit, which he brought 25 after he had been held to answer in this, contains a similar averment, and apparently he brought it to avail himself of such rights as he might have in case the decision in the present suit should be adverse to him. We are of opinion that the ruling was

erroneous.

Motion granted.

Parties cannot by Contract take away the jurisdiction of courts to determine their rights and liabilities: Baltimore etc. R. R. Co. v. Stankark, 56 Ohio St. 224, 60 Am. St. Rep. 745, 46 N. E. 577; Myers v. Jenkins, 63 Ohio St. 101, 81 Am. St. Rep. 613, 57 N. E. 1089. However, they may lawfully agree to impose a condition precedent with respect to matters which do not go to the root of the action. A stipulation in a policy of insurance that no suit shall be brought thereon unless in the county where the insurance company is established is not binding on the insured; neither is a stipulation whereby he waives the right to bring suit upon the policy except in the courts of the state incorporating the company; nor a stipulation whereby he waives the right to have the cause removed to a federal court: See the note to Utter v. Travelers' Ins. Co., 8 Am. St. Rep. 922.

JENNINGS v. VAHEY.

[183 Mass. 47, 66 N. E. 598.]

FIXTURES as Between a Mortgagee and a Vendor of Personal Property.-Ordinary Portable Kitchen Ranges placed in each set of rooms of an apartment house under a contract between the owner of the house and the vendor of the ranges, with a stipulation that the title should remain in the latter until they are paid for, do not prior to such payment become fixtures as between him and a mortgagee of the house, and hence the latter cannot enjoin their removal. (p. 411.)

Suit in equity to restrain the defendant from removing certain ranges from an apartment house on which the plaintiff held a mortgage. In the trial court the bill was dismissed. The plaintiff thereupon appealed.

D. Stoneman, for the plaintiff.

J. H. Vahey, C. H. Innes and J. B. Ferber, for the defendant.

48 KNOWLTON, C. J. The plaintiff holds a title as mortgagee of an apartment house consisting of twenty-four apartments, in each of which is a kitchen range. The defendant made a contract with a predecessor in title of the plaintiff's mortgagor, to set up these ranges, with a stipulation that the title to them should remain in him until they were paid for. As they have not been paid for, the defendant claims a right to take them out under his contract, and the plaintiff has brought this bill to enjoin him, contending that the ranges are a part of the real estate which passed to the plaintiff under his mortgage. The judge at the trial found facts as follows: "1. I find that the ranges were not annexed to and did not become part of the realty; that they had no peculiar adaptation to the tenements in which they were placed; that they were no more essential to the enjoyment of the premises than any other ranges that could have been procured as furniture to replace them. 2. I do not find that the defendant or original lessee of the ranges, then being the owner of the buildings, intended that they should become a part of the realty either before or after they were paid for." He entered a decree dismissing the bill and the case is before us on the plaintiff's appeal.

The only question before us is whether the findings are so clearly erroneous as to call for a reversal of the decree: Sheffield v. Parker, 158 Mass. 330, 33 N. E. 501; Wentworth v. S. A. Woods Machine Co., 163 Mass. 28, 39 N. E. 414; Boston Music Hall Assn. v. Cory, 129 Mass. 435.

The evidence shows that these are ordinary portable kitchen ranges, used principally for cooking, one being placed in the kitchen of each of the twenty-four apartments, resting upon a piece of zinc, which was also furnished by the defendant and laid upon the floor without being fastened to it, or to the range in any manner. From each of the ranges an ordinary funnel or stove-pipe passes into a hole in the chimney, constructed to receive such a pipe. Each range has a hot water front, which is not an essential part of the range, but can easily be removed from it without causing damage, as ranges of this kind are made with or without hot water fronts. Pipes from a hot water boiler are connected with the water front of each range by brass couplings and screws, which are attached to the boiler, and were 49 connected by a plumber. The hot water boiler is not fastened to the building, but is placed upon a stand which rests on the floor without being attached to it. If the boiler should be removed it would leave no sign of its having been there, except a

hole in the ceiling of about the size of a gas-pipe, through which the water-pipe passes. The range could be removed without damage to the premises, and could be used in any other placewhere there is a hole in the chimney for a funnel. Such ranges. can be bought at any stove store.

The case is almost identical with Boston Furnace Co. v. Dimock, 158 Mass. 552, 33 N. E. 647, in which it was held asa matter of law by a majority of the court that the ranges did not become a part of the building. There was evidence in that case, which, in the opinion of a minority of the court, presented: a question of fact as to whether they belonged to the real estate. But the minority did not intimate that the question of fact. should be decided in favor of the petitioner, who contended that they were a part of the realty. In the present case there is no ground for holding more favorably to the plaintiff than that there was a question of fact which it would be possible for a jury to find in his favor. But we are of opinion that the findings of the presiding judge were right. A decision to the same effect was made in Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353; where portable furnaces set in the cellar of a house were held to be personal chattels : See, also, Pierce v. George, 108 Mass. 78, 11 Am. Rep. 310; McLaughlin v. Nash, 14 Allen, 136, 92 Am. Dec. 741; Kimball v. Grand Lodge of Masons, 131 Mass. 59; Maguire v. Park, 140 Mass. 21, 1 N. E. 750; Hubbell v. East. Cambridge Five Cents Savings Bank, 132 Mass. 447, 43 Am. Rep. 446.

The ranges seem to have been such as, in most parts of the state, tenants take with them from house to house when they change their residence, and set up as a part of their furniture, as they carry a bureau or a table. The fact that the owner of the building placed one in each of his twenty-four apartments gives a suggestion of permanence, which furnishes some ground for an argument in behalf of the plaintiff; but the contract which he made with the defendant shows that he did not intend immediately to make them his property as a part of the real estate. We certainly cannot say that the decision of the judge of the superior court was plainly wrong.

Decree affirmed.

What are Fixtures is the subject of a monographic note to Gray v. Holdship, 17 Am. Dec. 686-696. See, too, the recent case of Smyth v. Stoddard, 203 Ill. 424, 67 N. E. 980, 96 Am. St. Rep. 314, and cases cited in the cross-reference note thereto. It has been held that a portable hot-air furnace, connected with the house in the usua

manner, is not a part of the realty: Towne v. Fiske, 127 Mass. 125, 54 Am. Rep. 353. But the contrary has been held as to steam radiators: Capehart v. Foster, 61 Minn. 132, 52 Am. St. Rep. 582, 63 N. W. 257. As to whether a baker's oven is a fixture, see Baker v. MeClurg, 198 Ill. 28, 92 Am. St. Rep. 261, 64 N. E. 701; Collamore v. Gillis, 149 Mass. 578, 14 Am. St. Rep. 460, 22 N. E. 46.

F. W. DODGE COMPANY v. CONSTRUCTION INFORMATION COMPANY.

[183 Mass. 62, 66 N. E. 204.]

PROPERTY in Compiled Information and Reports.-One who collects information in regard to the contemplated erection of public and private buildings and the construction of sewers, waterworks, and other undertakings of public utility as soon after their contemplation as possible, and compiles and distributes such information daily to his customers under contracts with them, so that it is of commercial value by reason of the speedy use which can be made of it before the information contained therein has obtained general publicity, has a property interest in such information in which he is entitled to the protection of a court of equity. (p. 414.)

REPORTS AND INFORMATION-Publication of, What is not. The furnishing of reports and information to customers under a contract with them that they shall hold the information in strict confidence and for their purposes only, is not a publication thereof, so as to dedicate the reports or information to the public, and deprive their compiler and furnisher of his right of control. (p. 415.)

REPORTS AND INFORMATION—Enjoining the Surreptitious Obtaining and Using of.—Where information is obtained and compiled by the expenditure of labor and money, and, in the form of reports, is distributed to customers for a compensation, under a contract by which they agree not to divulge such reports or information, a third person may be enjoined from obtaining such reports or information from one of such customers, contrary to such stipulation, and using it for the purpose of conducting a rival business. (p. 415.)

Suit in equity to restrain the Construction and Information Company from obtaining from plaintiff's subscribers information procured and compiled by it and confidentially imparted to them under contracts binding them not to divulge it, and to restrain the other defendants from paying to the Construction company any sums of money for information thus wrongfully obtained. In the trial court the case was heard upon general and special demurrers of the Construction company, which were overruled, and the judge, being of the opinion that the decree overruling the general demurrer so affected the merits of the controversy that the matter ought to be determined by the supreme court, reported the case to it for further determination.

:

J. R. Dunbar and W. Odlin, for the plaintiff.

C. F. Choate, Jr., and E. C. Stone, for the first named de fendant.

62 KNOWLTON, C. J. This case comes before us on demurrers to the plaintiff's bill. The plaintiff corporation has been engaged 63 for some years in the business of collecting information in regard to the erection of buildings both public and private, the construction of sewers, waterworks, and other undertakings of public utility, as soon after they are contemplated as possible. This information is carefully compiled and distributed each day to the plaintiff's customers in accordance with their contracts, enabling them very early to take such steps as may seem to them best to obtain contracts to do the work or to furnish supplies. The plaintiff, at great expense, has many servants and agents employed in the collection, preparation and distribution. of this information, which it sells to its subscribers under a contract in writing whereby the subscriber binds himself to use the reports in strict confidence and for his business only. The formal contract with subscribers, annexed to the bill, which is in blank, with large spaces for writing in special arrangements, shows that the information may be printed, written or oral, and implies that the information furnished to the subscribers is such as pertains to their different kinds of business, so that different subscribers receive information in detail on different subjects, according to their interests. It also contains an agreement to be signed by each subscriber, to hold the information in strict confidence and for his business only.

The plaintiff avers that the defendant corporation is engaged in the same kind of business as the plaintiff, and that it has obtained unlawfully and dishonestly, from the plaintiff's subscrib ers, information furnished them by the plaintiff under these contracts, being aware of the terms of the contracts between the plaintiff and its subscribers, and that it is purchasing these reports from these subscribers for cash, and is furnishing them to its subscribers daily, and is informing the plaintiff's subscribers that by subscribing for the reports of the defendant they will obtain the advantages of the plaintiff's reports for a less price than the plaintiff charges for them. The plaintiff says that the defendant has thereby prevailed upon many of the plaintiff's subscribers to cease buying the plaintiff's reports, and has caused the plaintiff great loss and damage. The prayer of the bill is for an injunction and an account.