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If, however, a tailor, for example, should make a suit from cloth belonging to a customer under an agreement that the suit should be delivered and the customer have time thereafter in which to pay for it, the tailor would be deemed to have waived his right to a lien and would have none. The provision in the contract for delivery before payment is inconsistent with the existence of the lien. In Chase v. Westmore the court said: “And we agree that where the parties contract for a particular time or mode of payment the workman has not a right to set up a claim to the possession inconsistent with the terms of his contract."
$ 54. Lien by custom of trade. The defendant, a warehouseman, had stored goods for the owner. The plaintiff, general assignee of the owner, demanded the goods without tendering payment. Defendant refused to give up possession, and plaintiff brought trover. It was held that defendant had a lien on any part of all goods received at one time for his charges on all such goods (9).
If a principal delivers goods to his factor to be sold, or if the factor purchases good for his principal; in either case he has a lien on the goods for his charges (10).
implied contract for services, the lien was allowed as the bailee's only means of enforcing payment. So the lien became established in cases where there was no express contract. When there was an express contract the bailee had an action and hence, originally, no lien. When Chase v. Westmore was decided there was an action on an implied contract. The court did not understand the true origin of the lien and could see no reason for a distinction between express and implied contracts.
(9) Steinman v. Wilkins, 7 W. & S. 466. (10) See Bryce v. Brooks, 26 Wend. 367.
In Naylor v. Mangles (11) the court held that a wharfinger had a lien and said that liens were either by the common law, usage or agreement; that a lien from usage was matter of evidence; that the usage in the present case had been proved so often it should be considered as a settled point that wharfingers had the lien contended for. That is the true basis of this class of liens. The bailee does nothing to improve the property and by the common law test would have no lien, but where the custom has been proved and recognized by the courts it is established as law that the lien exists. The liens of factors and warehousemen are well established in the United States.
Lien where bailee bound to receive the goods. In trover for goods delivered to the defendant as a common carrier, the defendant proved that he had offered to deliver the goods to the plaintiff if he would pay defendant his charges, but that the plaintiff refused. It was held that a carrier may retain the goods for his charges and a verdict was directed for defendant (12).
“By the common law an innkeeper is entitled to a lien for the amount of his charges on all the goods of his guest which are found in the inn.” “The innkeeper being obliged by law to receive travellers and entertain them, is given by law, not merely the right to compensation from the guest, but also a lien on the goods of the guest in the inn, to the extent of his charges” (13). The usual explanation of both the carrier's and the innkeeper's liens is that wherever the law compels one to receive
(11) 1 Esp. 109.
the goods of another the bailee is given a lien to secure his charges.
$ 56. Specific liens. An ordinary common law lien for work put upon the property of another is specific, i. e., for the charges for services on that article and nothing else. Thus, if A has repaired a pair of shoes for B and delivered them to B without being paid for them and, later, on another contract repairs another pair, A does not have a lien on the second pair for his charges on the first, either alone or together with the charges on the second pair itself, nor for any claim that he may have against B except the charges on the second pair.
Where, however, a quantity of logs were delivered on different days at the defendant's saw mill, under one contract to saw the whole quantity into boards, and the defendant sawed a part of them and delivered the boards to the bailor without being paid for the service, it was held that he had a lien for the amount of his account upon the residue of the logs in his possession (14). Here the sawing was an entire transaction, and the lien of the bailee for his whole compensation extended to every portion of the logs. The lien, however, was restricted to claims arising under that contract, and the defendant would have no right to retain any part of the logs to secure payment of claims arising from other transactions with the plaintiff.
Where the defendant in trover, a warehouseman, had stored goods for plaintiff's assignors, and had delivered part of them but retained a part claiming a lien for
(14) Morgan v. Congdon, 4 N. Y. 552.
charges, the court instructed the jury that though the defendant could not retain for the general balance of his account, he might retain for all the charges on all the goods forwarded to him at the same time. This was held to be correct and it was recognized that a warehouseman does not have a general lien (15).
In trover for goods retained by defendant, a common carrier, under claim of a lien for a general balance due, it was left to the jury to say whether the existence of such a lien was so generally recognized by custom that the parties contracted with reference to it, otherwise, the jury were charged, there would be no lien for a general balance; and this was held correct (16.). And it is the law that a common carrier has only a specific lien.
In Mulliner v. Florence (17) the plaintiff's horses, wagonette, and harness were held by the defendant under an innkeeper's lien Plaintiff tendered the amount due for the keep of the horses and demanded that they be given up to him. The court held that he must pay, not only for the keep of the horses but also for the entertainment of the guest who had brought them. The lien is on any part or all of the property for the expense of the keep of the property and of the guest. There is one contract, one debt, and one lien in respect of the whole of the charges. It is not a general lien, but like a common law lien on part of several articles for charges for improving all, where all the work is done under one contract.
(15) Steinman v. Wilkins, 7 W. & S. 466.
§ 57. General liens. In Kruger v. Wilcox (18) a factor to whom a general balance on account was due from his principal, received goods from the principal and afterwards gave up possession to the principal. The goods were sold and the question was whether the factor was entitled to a preference out of the money by virtue of a lien. It was held that if there is a course of dealings and general account between a merchant and his factor the latter may retain the goods, or produce, for such balance of the general account, as well as for the charges, customs, etc., paid on account of the particular cargo. Although previous to this case it was in doubt, it is now well settled that a factor has a lien and may retain for a general balance; including responsibilities incurred in the execution of his agency.
In In re Witt (19) A had been accustomed to send goods to B for the purpose of shipping abroad. A became a bankrupt, and B, having on hand at the time various parcels of goods belonging to A, refused to deliver them to the trustee in bankruptcy until paid the charges due him. It was held that B had a general lien by custom; that packers had formerly been to a certain extent considered as factors and the general lien, having been established, it still continues.
These cases establish the law to be that the common law gives only specific liens and that of the liens given because the bailee is bound to receive the goods and of
(18) Ambl. 252.