Ruggles v. Walker

Kellogg, J. The first question in this case is, whether Whipple, the plaintiff’s assignor, had any lien on the property which is the subject of the action, for the price of manufacturing it; and the second, whether if he had a lien, it was of such a character as to enable him to transfer it with the property by assignment to the plaintiff, so that the plaintiff could rightfully hold the property against the defendant. It is conceded that the general property' in the starch manufactured by Whipple was in the defendant. I. A lien is a right to retain in one’s possession another’s property until some demand due to the person retaining has been satisfied. Hammond v. Barclay, 2 East 235. It is a settled principle that where a party has, in the way of his trade or occupation, bestowed his money, labor, or skill upon a chattel, in the alteration and improvement of its properties, or for the purpose of imparting an additional value to it, he has a lien upon it for a fair and reasonable remuneration, or for the contract price, if the price has been fixed by agreement; and this, though [471] the chattel be delivered to him in different parcels, and at different times, if the work to be done under the agreement be entire. Chase v. Westmore, 5 Maule and S. 180. This is the ordinary lien of manufacturers, workmen, and artificers. Whipple was therefore entitled to this lien for the starch manufactured by him. for the defendant; and although the contract called for the payment of the price of manufacturing the starch in advance, yet we think that the neglect or refusal of the defendant to make such payment should not affect the right of lien. The mere existence of a special agreement will not, of itself, exclude that right except in cases where the terms of the agreement are inconsistent with it. In McFarland v. Wheeler, 26 Wend. 467, it was expressed as the opinion of the court that when goods or other articles subject to a particular lien are delivered in part, those retained may be held to secure the payment for all the labor, skill, or expense laid out upon the whole under one and the same contract between the same parties, thus constituting one debt; and the case of Blake v. Nicholson, 3 Maule and S. 168, is alike in principle. II. The more important question is, whether Whipple’s lien was of sueli a character as would enable him to transfer it with the property by assignment-to the plaintiff. The rule, as generally stated by text writers, is that the right of lien is a personal-right which cannot be parted with, and that a person who has a lieu can not sell his right to another, nor can he transfer the property over which the lien extends, without losing his right, unless the property has been pledged to secure the payment of money advanced, with an express or implied power of sale. 2 Kent’s Comm., 642 ; Addison on Contract's, 1155. It is said by Burrek, J., in Lickbarrow v. Mason, 6 East 27, in notis, that he who ha3 a lien only on goods has no right to sell or dispose of them, but only to retain them until the original price be paid ; and the same profound jurist says, in Daubigny v. Duval, 5 D. & E. 604, that “alien is a personal right, and can. not be transferred to another.” An innkeeper who has a lien on the horse of his guest for his keeping has no right to sell the horse except by the. custom of London. Jones v. Pearle, 1 Str. 556; The case of an Hostler, Yelv. 67. In Holly v. Huggeford, 8 Pick. [472] 73, the lien of a factor was held to he a personal privilege which could not be set up by any other person in defence of an action by the principal. The case of Doane v. Russell, 3 Gray 382, fully recognizes the rule that the right of lien is a personal right to detain in contra-distinction to an interest in the property, and that if a party parts with the article by a pledge, sale or otherwise, he loses his lien. In that case, the question was whether the defendant who held a mechanic’s lien on a wagon for the payment of his work and materials, had a right, upon notice, and in case the bill was not paid in a reasonable time, to sell the wagon to enforce the lien ; and it was held that he had no such right, and that a party having a lien only, without a power of sale superadded by agreement, can not lawfully sell the chattel for his reimbursement. Shaw, Ch. J., in his opinion in the case, distinguishes between a lien for work and materials, as given by what was anciently called the custom of the realm, or now the general law, and an express pawn or pledge of goods by the owner as collateral security for a loan of money, and says that “ in the latter case, it is now held that when the debt has become due, and remains unpaid, the creditor, after a reasonable time, may sell the pledge ; but otherwise when there is a mere lien, as in the ease of mechanics, innholders, and others by custom.” The distinction is this, that a lien, when given by law, is merely a right to retain or keep possession of property until payment; but a pledge of property by way of security for a debt is a lien with a power of sale superadded. In Lovett v. Brown, 40 N. H. 511, it is held that a mechanic’s or manufacturer’s lien is neither a jus ad rem, nor a jus in re, but a simple right of retainer, personal to the party in whom it exists, and not assignable or attachable as personal property, or a chose in action, of the person entitled to it. The lien in such cases is a mere passive lien or right of retainer, and, although the retention of the property may be attended with expense, and may be of no benefit to either party, these considerations will not change the nature of the lien or the rights conferred by it. It is of the same nature as the lien of an attorney or solicitor on papers for his costs, which is a mere personal right, and one that can not be actively enforced, as the papers can not be sold or transferred, [473] but can only be held as a security. Bozon v. Bolland, 4 Myl. & Cr. 354, (18 Eng. Ch., S. C.) Property hold by a party in right of a lien can not form the subject matter of a sale by, or be taken on execution against, the lien holder. Legg v. Evans, 6 M. & W. 36; Holly v. Huggeford, ubi supra; Kittredge v. Sumner, 11 Pick. 50. We regard it as well established by the authorities referred to that Whipple’s right of lien was, while the property remained in his possession, a personal privilege which he could not sell or transfer except with the consent of the defendant, who was the general owner of the property; that possession was essential not only to the creation, but also to the continuance, of the lien: and that when Whipple parted with his dominion over the property, and suffered its locality to be changed, so as to put it out of his power to surrender it on demand to the general owner, on payment or tender of the price of manufacturing it, his right of lien was determined and forfeited. The transfer by Whipple' of his right of lien to the plaintiff was consequently inoperative, and passed no right or interest in the property to the plaintiff. A different view of the law of the case having been taken by the county court in the instructions given to the jury, the judgment of that aourt in favor of the plaintiff is reversed, and a new trial granted.