Howe v. Wiscasset Brick & Pottery Co , 78 Me. 227 ( 1886 )

Libbey, J.

After the evidence was out the presiding judge directed the jury to return a verdict for the plaintiff for the amount claimed, and that he had no statute lien on the bricks attached therefor. To this direction the plaintiff excepted. If' there was evidence which, if true, would authorize the jury to find that the plaintiff had such a lien the direction was wrong.

The evidence relied on to support his lien comes wholly from the plaintiff. The defendant corporation was engaged in manufacturing brick, in Wiscasset. The plaintiff was its general agent in carrying on that business. He testified, in substance, that, in the spring of 1884, the corporation was without means to prosecute its business, and he made a contract with its directors to go to Wiscasset, contribute his personal labor, advance his money to hire laborers and buy wood, manufacture the bricks, get them into market, sell and convert them into money, reimburse himself, and pay the balance, if any, into the treasury of the corporation ; and that under this contract he burnt two kilns of bricks, when the corporation was put into insolvency.

By this special contract he had a lien upon the bricks which he manufactured. The terms of the contract were inconsistent with the statute lien. The plaintiff was to put them into the market, convert them into money, satisfy his own claims, and pay the balance, if any, to the corporation. Proceedings to enforce a lien under the statute would prevent the performance of his contract. He could not put them into market and sell, but they must be attached and remain till judgment might be rendered for the lien, and then the sale is a judicial sale, at the place of manufacture. This process might be much more preju-dical to the defendant than the enforcement of the lien under the contract. The two liens could not exist together, and it must be presumed that the parties intended to substitute the lien by special contract for the statute lien. Barrows v. Baughman, 9 Mich. 213.

The plaintiff’s lien under his contract was in no way affected by the insolvency. The assignee took only what interest in the property the debtor had. Hutchinson v. Murchie, 74 Maine, 187; Merry v. Lynch, 68 Maine, 94.

Exceptions overruled.

Peters, C. J., Walton, Danforth, Emery and Poster, ■JJ., concurred.