Curtis v. Jones , 3 Denio 590 ( 1848 )

Beardsley, J.

The defendant justifies the detainer of the

doors under his right of lien for their manufacture. It was not denied on the argument but that this defence was well pleaded ; and the only questions made arose on the plea to this avowry. The plea sets up new matter in avoidance of the bar interposed by the avowry, as the plaintiff had a right to do. For this purpose he might show, as was attempted by this plea, that the work was done under an agreement which precluded the party from setting up a lien in his favor, or which was inconsistent with the existence of such a right. (Jones on Bailment, Phil. ed. of 1836, App. 49 to 52; Chase v. Westmore, 5 Maule & Sel. 180; Chandler v. Belden, 18 John. 157; Cross Law of Lien, 42, 327.) But the answer to the avowry, whatever it may be, must be properly pleaded; and when an agreement is set up in a plea, its terms and provisions must be stated with reasonable certainty and precision. That has not been done in this instance; the plea is general, vague and uncertain. (Com. Dig. tit. Pleader, E. 5, C. 22; Andrews v. Whitehead, 13 East, 102; Ward v. Harris, 2 Bos. & Pul. 265.) It should have shown what were the particulars of the agreement under which the doors were made, including, as most essential and indeed indispensable, the price and time of payment. This would have enabled the court to determine whether the right of lien continued to exist notwithstanding the special agreement, or was thereby destroyed. The plea is bad.

After argument in this court, and deliberation thereon the judgment of the supreme court was affirmed.