Trust v. Pirsson , 1 Hilt. 292 ( 1857 )

Daly, J. —

The chief difficulty in this case — tliat is, whether the plaintiff had any lien at all — does not appear to have been considered upon the trial, nor upon the submission of this appeal.

That he had no lien is very clear. A lien at common law and in equity is a right to retain and possess a tiling until some charge upon it is paid and removed (2 Story Eq. Jur. § 1216), .and as far as it relates to personal property, it depends less upon any general principle than upon the usage of trade, or the recognition of a right to it, in particular instances. Kruger v. Wilcox, 1 Amb. 253, and note, 2 ed.; Green v. Farmer, 4 Bur. 2221. Thus a wharfinger or'warehouseman has a lien, by established commercial usage, upon the goods deposited with him, for his charges. Rex v. Humphrey, McClel. & Y. 173 ; Boardman v. Sill, in note to Attersoll v. Briant, 1 Camp. 409 ; Naylor v. Mangles, 1 Esp. 109 ; Schmidt v. Blood, 9 Wend. 270. While the finder of a chattel has no lion for the expense he may have been at in taking care of it for the owner. Nicholson v. Chapman, 2 H. Black, 254. Nor has an agistor upon the cattle he depastures (Jackson v. Cummins, 5 Mees. & Welsb. 342) ; nor a stablekeeper for the keep of a horse ( Wallace v. Woodgate, 1 C. & P. 575) ; though the natural equity in favor of allowing this kind of security in the three latter cases is quite as great as in the former.

A lien exists either by the express agreement of the parties or it is implied from their mode of dealing, or it follows from the established usage of trade, or it is founded upon the immemorial recognition, by the common law, of a right to it, in special cases, as in the case of carriers, innkeepers, and farriers, who are bound to receive employment when offered to them in their particular calling, and who are liable to an action if they refuse. York v. Greenough, 2 Ld. Ray. 866 ; Parkhurst v. Foster, 1 Salk. 388 ; Lane v. Cotton, 12 Mod. 484. And in the case of tailors, Cooper v. Andrews, Hob. 42 ; and of dyers, Green v. Farmer, supra ; which has led to the recognition of it in the case of every bailee for hire who takes property in the way of his trade and occupation, and by his labor and skill imparts additional value to it. Bevan v. Waters, Mo. & M. 235 ; Scharf v. Morgan, 4 Mees. & Welsh. 283 ; Grinnel v. Cook, 3 Hill, 491.

But if, in any case where the right to a lien would be recognized or implied, the parties make a special agreement for a particular mode of payment, or for payment at a particular time or period, tlie right of lien, which would otherwise be implied, does not exist. Chase v. Westmore, 5 M. & S. 180 ; Cowell v. Simpson, 16 Ves. 275 ; Walker v. Birch, 6 T. R. 258 ; Chandler v. Belden, 18 Johns. R. 157 ; Woolen Manufactory v. Huntley, 8 New Hamp. 441 ; Cumming v. Harris, 3 Verm. 244. If the agreement is antecedent to the possession, no lien is created; if it is made afterwards, it is a waiver of the lien. Indeed, it was long doubted whether any lien could exist where the parties specially agreed as to the price (Brennen v. Currint, Sayre, 224 ; Yelv. 67, note); but upon a full examination of the early authorities in Chase v. Westmore, supra, this was repudiated, and it was shown that the rule, to be extracted from the year books, extended no further than to deny the right of lien where a future time of payment was fixed by the parties.

The agreement of the parties in this ease is contained in two instruments, one signed by the plaintiff and the other by the defendant Pirsson; and, taken together, they show that Pirsson was to have the right to store, to repair, and to sell piano fortes in the plaintiff's store, for which privilege he was to pay $25 a month, to be paid at the expiration of each month, and the agreement was to continue in force from the time of its date, Nov. 6 1854, until the 1st of May following. This was, in substance, an agreement to use the store for six months for a particular purpose, and is very distinguishable from a contract with a warehouseman, the only character in which the plaintiff could claim to have a lien upon the pianos under this agreement.

Goods are deposited with a warehouseman for safe keeping, lie has the custody of them, and, in the safe keeping of them, is bound to ordinary care and diligence, being liable if they are injured, while in his care, through his negligence; and he is generally understood to be one who carries on a public business of receiving goods into his custody, or under his care, for reward. Thomas v. Day, 3 Esp. 262 ; Platt v. Hibbard, 7 Cow. 500, and note a. And even a warehouseman’s right to a lien has been doubted (Rex v. Humphrey, supra) ; or, if upheld at all, it can only be by established commercial usage, which was offered to be proved in Schmidt v. Blood, supra. But no such employment as tbis arose, or is contemplated by this contract. Pirsson was not merely to have his piános stored, but he was to have the use of the plaintiff’s store for the repairing and sale of his pianos for a definite period. By the contract it was provided, that it was not to be construed into a letting of the store — that is, Pirsson was not to have the exclusive possession, but the use of it, and a possession in common with the plaintiff, for the purpose specified. This was very different from an agreement with a warehouseman for the storing of goods.

But even if it could be treated as a contract of that description, the agreement for the payment of $25, at the expiration of each month during the period the agreement was to continu^, was wholly inconsistent with the retention of the right of lien. The authorities cited are conclusive on this point. In Woolen Manufactory v. Huntley, supra, the defendant was to dress what flannel should be sent to him during a year, and to receive his pay quarterly, and it was held that he had no lien. The distinction, that there can be no lien where the day or time for payment is regulated and fixed by the parties, is as old as the year books, and it is manifest that the law could not be otherwise. The right to detain all the property to which the lien attaches, until the charge upon it is paid, is incident to the right of lien. When, then, did the lien in this case attach? Certainly not when the possession commenced, for no payment was to be made until a month after. During that time Pirsson had a right, under the agreement, to sell any of his pianos that might be there, and of course to deliver them to the buyers, for the plaintiff could set up no claim to action then, nothing being due. The contract, therefore, went into operation with a recognition of rights on the part of Pirsson wholly inconsistent with a reservation of a right of lien. It was nothing else but an agreement for the use of the store for a certain period, at so much per month, for the prosecution of a particular business by Pirsson, and gave the plaintiff no lien upon the property which Pirsson had there in the prosecution of that business, but, by its nature and terms, was - wholly inconsistent with the existence of such a right.

The existence of a lien was directly pnt in issue by the an* swcr; and if the plaintiff could maintain his action at all in the form in which he brought it, it could only be for money due under the contract for the use of the store. Having obtained a verdict, we must intend, having nothing before ns on this motion but the pleading and the judgment, that the jury found in accordance with the law; that he recovered what he was entitled to by the terms of the contract — that is, $40, against which they allowed a counter-claim of $39, for an. unlawful interference with and partial or temporary deprivation of the possession, which they had a right to do. Drake v. Cockroft, 1 Abbott, 208. The action, therefore, being for the recovery of money, and having recovered less than $50, the defendants were entitled to costs, and the order at the special term should be affirmed.

In the view I have taken of this case, it has become necessary to pass upon the questions which have been discussed upon the appeal, and which were assigned as the ground for the decision made by Judge Brady at the special term.

Order at special term 'affirmed.