Sugg v. O. C. Farrar & Co.

Daaus, J.: The facts of ibis case ai e not as fully and clearly stated as they might have been, but it is plainly to be inferred, from the record, that the defendants purchased the cotton of Keel & Brother (the tenants of the plaintiff) before his lien as landlord had been fully satisfied. The plaintiff had one of three remedies: he could have sued for the specific property, or in tort for its conversion, if its delivery was refused (Belcher v. Grimsley, 88 N. C., 88), or he might have waived the tort, by ratifying the sale, and have brought his action in the nature of assumpsit for money had and received. Pie has elected to pursue the last named remedy, and he is entitled to recover, unless the defence relied upon is valid. The “ price” of the cotton was in the hands of the defendants, subject to the lieu and for the use of the plaintiff, and his right to it was distinctly recognized. Now, in this state of the case, the plaintiff, upon the application of one of the defendants, and without any consideration therefor, consented that the defendants might pay the price to Keel & Brother. *126 So far as appears, the latter had no knowledge of this transaction, nor does there appear to have existed any privity between them and the defendants. Before the defendants had paid the money to Keel & Brother, who appeared to have been the only parties interested in the matter, and before, so far as the case discloses, they even had knowledge of the plaintiff’s consent that the defendants might pay the money to them, and before there was any alteration or change in the condition or relation of the parties the plaintiff revoked the permission given to the defendants, and required them to pay the money to him, according to the original obligation. It is contended, for the defendants, that when the plaintiff consented that they might pay the price of the cotton to Keel & Brother, “it was a complete waiver and cancellation of plaintiff’s lien, and that very instant the ownership of the price of said cotton became a vested right in Keel & Brother, and they could have successfully maintained their action against the defendants for the recovery thereof, had they declined to pay it to them,” and that the plaintiff has no power to recall or revoke the permission given the defendants to pay the money to Keel & Brother. Undoubtedly, if the defendants had paid the money to Keel & Brother before the revocation of the permission, they would not be liable, for they would have been paying out the plaintiff’s money in accordance with his express authority and permission; but we are unable to see, if plaintiff’s permission was necessary, why he could not revoke it at any time before it was acted upon, or how he lost his lien by what occurred between him and the defendants. The agreement was an executory one, and without consideration, and even if it appeared that the defendants were acting as the agents of Keel & Brother (and no agency appears), it would not have worked a discharge of the lien. Keel & Brother could not have compelled either the plaintiff or defendants to have executed the agreement against the *127 plaintiff’s consent, for the plain reason that there was an entire absence of any consideration. “A lien must be regarded as something of value. It may be given up without any valuable consideration; but an agreement to give it up, in order to be obligatory, must be based upon a legal consideration.” Danforth v. Pratt, 42 Maine, 50. The plaintiff simply, and without any consideration, gave his consent to the defendants to pay the price of the cotton to Keel & Brother. Before the defendants had acted upon the consent thus given, and before any rights had accrued to anybody by reason of the consent, it was withdrawn, and, -when paid, it was against the consent of the plaintiff, without any authority, and made the defendants liable. The fact that the defendants paid the money to Keel & Brother after the revocation of authority to do so, cannot protect them. The cases cited by counsel for the defendants have no application to this case. The case of McDougall v. Crapon, 95 N. C., 292, relates to a common law lien where the surrender of the possession is a discharge of the lien, whereas the lien here is conferred by statute, and is not lost by the wrongful act of the tenant, who cannot transfer the possession to any one to the prejudice of the landlord. In the other case, Brem v. Covington, 104 N. C., 591, there was a consideration, and the order was held to be irrevocable. Here, there was no consideration, and the revocation was before any rights had accrued to be prejudiced. The plaintiff was entitled to recover, and there is error. Error.