Stillings v. Gibson

Carpenter, J. Tbe plaintiff claims by virtue of a lien at common law, and not under tbe statute. It appears, from the reported facts and tbe verdict of tbe jury, that tbe plaintiff contracted with tbe owners of tbe timber to haul and load it upon tbe railroad cars at a certain price per thousand feet, to be paid to him “upon tbe returns of"sales,” — that is to say, upon tbe receipt by tbe owners of tbe avails of tbe sales in market. It does not appear bow long a credit was thus given by tbe plaintiff, nor is it material. A lien at common law is tbe right of detaining tbe property of another until some claim is satisfied: possession, actual or constructive, is essential to its existence. Hence, one wbo is bound by bis contract to deliver to tbe owner property upon which be has expended labor, before tbe stipulated time of payment arrives cannot be entitled to a lien. The obligation to deliver before payment negatives tbe right to detain until payment. Stoddard Manufactory v. Huntley, 8 N. H. 441, and cases cited; Pinney v. Wells, 10 Conn. 104; Pichman v. Woods, 6 Pick. 248; Stickney v. Allen, 10 Gray 352; Raymond v. Tyson, 17 How. (U. S.) 56 ; Chase v. Westmore, 5 M. & S. 187 ; Crawshay v. Homfray, 4 B. & A. 50 ; Alsager v. Pock Company, 14 Mees. & W. 794; Foster v. Colby, 3 H. & N. 705. . Inasmuch as tbe plaintiff bad no lien upon tbe'timber before -delivery, it is immaterial whether that part of it for which be brings suit bad or bad not been delivered at tbe time when be asserted tbe lien, and for tbe same reason no question upon the right of stoppage in transitu arises. Whether under tbe statute (G. L., c. 139, s. 13) a lien may exist notwithstanding credit is given need not be considered, because tbe plaintiff at tbe trial made no claim under tbe statute, but relied wholly upon a lien at common law. Judgment on the verdict. Blodgett, J., did not sit: tbe others concurred.