Fitzwater v. Roberts & Co.

Opinion by Mb. Justice Fell, The plaintiff brought replevin for a carriage which was in the possession of the defendants and had been left with them as keepers of a livery stable. The defendants claimed a right to retain possession of the carriage for storage charges, and also by reason of an agreement that it should remain in their possession as security for a debt due them by the plaintiff’s husband for keeping a horse. Both grounds of defence were controverted. It was testified by the plaintiff that the carriage was left with the defendants under an agreement that no charges should.be made for storage, [456] and it was denied by her husband that an agreement had been made that it should be held as security for his debt. That the plaintiff after the removal of the horse authorized the defendants to sell her carriage for a price named, and to retain from the money received the amount they claimed to be due by her husband, did not defeat her right to recover in the action. This authority was given five months before the writ issued. It was not for an indefinite time, and it was to sell, not to retain the carriage : and if her testimony was correct, it was revocable at her pleasure. The testimony was not presented in an orderly manner, and was far from being clear or convincing, but we are of opinion that it raised an issue of fact for the jury and that a nonsuit should not have been granted. The judgment is reversed and a venire de novo awarded.