Rosenbaum v. Hayes

Bartholomew, C. J. The opinion upon a former appeal may be found in 5 N. D. 476, 67 N. W. Rep. 951. We restate the facts as there stated: The plaintiffs are seeking to recover in replevin the possession of 5,600 sheep from the defendant, who, as sheriff, seized them on attachment against George M. Beasley & Co. The plaintiffs base their right to possession upon a factor’s lien for a general balance due them from Beasley & Co. on account of advances made by them as commission merchants to Beasley & Co. under an agreement that Beasley & Co. were to purchase sheep, and consign them to plaintiffs, in the City of Chicago, to be sold by plaintiffs, as commission merchants, on account of Beasley & Co.; all the surplus, after reimbursing the plaintiffs for their advances and expenses in the business, and after paying their commissions on such sales, to be turned over to Beasley & Co. There was evide'nce tending to prove that on the nth of April, 1893, Beasley & Co. were, and ever since that day have been, indebted to the plaintiffs in the sum of about $16,000. If at any time before their seizure under the attachment by defendant the sheep in question came to the possession of the plaintiffs under the arrangement between them and Beasley & Co., then there attached to them a factor’s lien in favor of plaintiffs for the general balance due them from Beasley & Co. 1 Jones, Liens § 418. The contract between plaintiffs and George M. Beasley & Co. is undisputed, as is also the general balance due plaintiffs. It follows, then, that plaintiffs should recover, if they show that the said sheep had come into their possession as such del credere factors, unless they have waived their lien. At the close of plaintiffs’ testimony the Court, on defendant’s motion, discharged the jury, and dismissed the complaint. From this order, and the judgment entered thereon, the plaintiffs appeal. Respondent defends this action of the Court, first, upon the ground that, on the record, plaintiffs had waived their factor’s lien, if — 466 — any they had. This proposition is based upon the following condition of the record: On the first trial of this case the jury failed to agree. On the second trial, after the evidence was closed, the Court intimated that it might direct a verdict for defendant. Thereupon counsed for plaintiffs, while insisting that the complaint was sufficient to sustain all proofs, yet, to save any question, asked and obtained leave to amend the complaint by setting up absolute title in plaintiffs to 4,400 head of said sheep, alleging that they were bought by George M. Beasley & Co. with plaintiffs’ money, and under an express agreement that they were to be plaintiffs’ sheep. Some testimony was taken on the point. At some time during the trial one member of the plaintiff firm had given testimony strongly supporting the allegation in the amendment. The jury, however, found against plaintiffs on this point, but found in their favor on the question of lien. That verdict was set aside on the former appeal by reason of misdirection of the jury. We infer that no actual amendment to the complaint had been made, because, after the record was returned to the District Court, plaintiffs served upon defendant a copy of a proposed amended complaint, embodying the allegation of ownership, with notice of application to the Court for an order allowing the same. This order must have been granted, as subsequently there was an application by respondent for an order setting aside such order of allowance; and, while this last application was pending, appellants, by leave of Court, withdrew their proposed amendment, and offered another, returning to the claim in the original complaint as we construe it. Subsequently the Court set aside its order granting leave to amend the complaint, but making both proposed amendments a part of the record. That left the case to be tried upon the original complaint. But respondent urges that, by claiming as owner, appellants waived their factor’s lien. As all the matters here urged as ground for dismissing the action appeared of record when the last trial commenced, orderly practice required the motion based upon such record to be made at that time, and not after more than a week had been consumed in introducing appellants’ testimony. But appellants do not seek to take advantage of this delay, and we pass it, simply noting it to discourage such practice. We think, however, that the doctrine of waiver has no application to this case. It is a well settled principle that, where a party who has a lien upon property is in a proper manner and for a proper purpose placed in a position where it becomes his duty to disclose the nature of his claim, if then he conceal his lien and claim ownership, and the other party acts upon such statement, the lienholder cannot afterwards change his position to the detriment of such other party, and,assert his lien. He waived or abandoned his lien by concealing the same' and asserting a title inconsistent therewith. It acts by way of estoppel. Necessarily this must be true, because no man is denied the privilege of establishing the truth, unless to permit him to do so would work a legal injustice to some other party. In every case that has been — 467 — cited to us, or that we have found, where it has been held that a lien had been waived by a claim of ownership, such claim had been first made and acted upon before any claim under a lien was disclosed. A reference to a few of the cases relied upon will disclose the grounds upon which they are based. Everett v. Saltus, 15 Wend. 474, was trover for some lead. Defendants had a lien upon the lead for certain freight, but, when the lead was demanded, defendants stated that they had bought it and paid for it, and would not do anything about it. A second demand was made, with an offer to pay any lawful demands against the same, and defendants replied that they would have no further communication on the subject. As a defense to the action, the defendants sought to set up their lien, but the Court said: “But, if the defendants had a lien, they waived it by not putting themselves upon that ground when the property was demanded by the plaintiff’s agent. They claimed the property as purchasers, and said they would do nothing about it. They denied the plaintiff’s right, and set up a title in themselves independent of the lien. Under such circumstances, a tender of the freight and charges was unnecessary.” In Mexal v. Dearborn, 12 Gray, 338, the Court say: “The law will not allow a party to insist upon and enforce in his own behalf a secret lien upon personal property after he has claimed it unconditionally as his own, and has-thereby induced another to act in relation to it, in some manner affecting his own interest, ,as he would or might not have done if he had been openly and fairly notified of the additional ground of claim. It would be fraudulent in him to practice such concealment to the injury of others; and, to prevent the possibility of attempts so unjust becoming successful, the law implies that an intended concealment of that kind is of itself a waiver of the lien.” The case of Hudson v. Swan, 83 N. Y. 552, was replevin for a horse. Plaintiff claimed as sole owner of the horse, but the evidence showed that he at one time had a lien on the horse. Subsequently he supposed he purchased it, but the authority of the party who made the sale was denied. The jury were instructed that, if plaintiff failed to establish ownership, he might still rely upon his lien. But the appellate court said: “At no stage of the proceedings did he concede the defendants’ title and limit his claim to one as lienor. No opportunity was given to the defendants to discharge any such lien. The plaintiff denied its existence by claiming .as sole owner, and down to the last moment maintained that claim, and submitted it to the jury, who found against him. He must, in this action at least, stand or fall upon that claim; and we think it was error to instruct the jury that he could fall back upon his alleged lien. Many of the authorities hold that such a claim absolutely extinguishes a right of lien, and that it cannot be revived.” The case of Fowler v. Parsons, 143 Mass. 401, 9 N. E. Rep. 799, is the converse of those we have been considering, and serves to illustrate the grounds upon which courts proceed. The action was replevin, both parties claiming ownership by their plead — 468 — ings. The evidence showed that defendant, believing that he was the consignee of certain goods, paid the custom duties which were a lien thereon. Plaintiff, knowing that defendant claimed the goods, stood by and saw him pay the duties, and then replevied the goods from him. It was held that plaintiff could not recover without paying or offering to pay the customs duties, and that defendant had not waived his lien for the same. In that case plaintiff knew of the existence of the lien, and was in no manner deceived or misled upon that point by defendant’s claim of ownership; hence the lien was not waived. In the case at bar, appellants, in bringing the action, based their right of recovery, not upon any claim of ownership, but upon a factor’s lien, and upon that only. It was to that claim that defendant answered. The whole case was tried upon that theory. At the close of the case appellants, while protesting that their complaint was sufficient, and was supported by the proofs, yet, to avert á threatened prejudicial ruling, asked leave to amend their complaint by adding a claim of ownership as to a portion of the goods. This was objected to by respondent as inconsistent with the original complaint. Ultimately the Court took that view of it, and appellants withdrew their proposed amendment; thus leaving the issues exactly as they stood from the first. If appellants waived any rights in this casé, it was the right to plead ownership. They concealed any such claim, based their recovery upon a lien, and forced respondent to the expense of two trials on that basis. The Court was right in excluding an amendment setting up title. But, ’ if an attempt to plead ownership waived the right of recovery upon the lien, then the two claims have been mutually destructive of each other. We do not think any such result should be permitted. None of the reasons for a waiver of the lien apply in this case. Respondent was appraised of it from the first. He could not have been deceived after all the facts had been brought out upon two separate trials. He had every opportunity to pay the lien, if he so desired. He was induced to take no step prejudicial to himself by reason of offered assertion of ownership. There 'never was a moment, and he knew it, in which appellants were not insisting upon their lien. There could be no waiver under such circumstances. Learned counsel also cite in this connection Wingard v. Banning, 39 Cal. 543, and Cox v. Harris, 64 Ark. 213, 41 S. W. Rep. 426. These cases are more strictly cases of election of remedies. In each case a party had a lien upon specific personalty, in one case dependent upon possession, in the other by mortgage. In each case he disregarded his lien, brought suit upon his claim, and attached the specific property. Failing to realize in attachment, he afterwards sought to claim under the lien; and it was held in each case that he had waived his lien; or, rather, that he had two inconsistent remedies, and, having elected to pursue one, he could not afterwards pursue tbe other, and that his first election was conclusive. Applying the principle of those cases to the case before us, we should say — 469 — that, instead of having .waived their lien claim, appellants are necessarily confined to that claim. Having, in bringing this action, elected to claim under a lien, they cannot make an inconsistent claim of ownership. But respondent further contends that the action of the Court in taking the case from the jury must be sustained upon the ground that appellants had entirely failed in their proofs. This Court .has expressly repudiated the scintilla rule. Fuller v. Elevator Co., 2 N. D. 220, 50 N. W. Rep. 359. To sustain a verdict, it must appear that it might have been reached by a jury in the exercise of an unbiased and unprejudiced judgment; and, on the other hand, where a case is -taken from the jury, the defeated party has a right to have everything regarded as proven that his evidence has any fair tendency to establish. We recite some of the facts briefly: About April 10, 1893, George M. Beasley & Co. loaded 20 car loads of sheep on the cars of the Northern Pacific Railroad Company at Rosebud, Mont., and forwarded them to Dickinson, N. D. The day following the Beasleys shipped 20 additional cars of sheep by the same carrier from Rosebud to Dickinson. At the time of the last shipment, April 11, 1893, a bill of lading was issued by the agent of the railroad company at Rosebud which recites the receipt of 40 car loads of sheep from George M. Beasley & Co., consigned to appellants at Dickinson, N. D. This bill of lading was at once forwarded by mail by the Beasleys to appellants at Chicago, and was duly received by them. It is contended now, as it was upon the former appeal, that the delivery of this bill of lading to the consignees placed the sheep in their exclusive possession. We need not stop to discuss the general rule that fixes the factor’s lien the moment he obtains exclusive possession as such factor. Respondent claims that the rule does not apply in this case, because there were shipping contracts issued, which were noted on the bill of lading, and which must be considered therewith. Under such contract, the shippers were to remain in possession and accompany the stock and have charge of the same; and it seems that this was in fact done in this case. But we need not discuss the question whether or not, as between consignor and consignee, the possession could pass to the latter under these circumstances; nor need we discuss whether or not the appellants, conceding that they received the sheep, received them as factors; nor need we discuss certain parol evidence tending to show that the Beasleys employed certain persons for appellants, and placed them in charge of the sheep. In our judgment all these matters are here immaterial, because, conceding that appellants once had possession, we are all agreed that they subsequently lost and surrendered such possession. It stands undisputed in this record that early in June, 1893, said sheep were on the order of W. W. Beasley, a member of the firm of George M. Beasley & Co., driven from their feeding grounds, which were 35 or 40 miles distant from Dickinson, to the immediate vicinity of that place; that W. W. Beasley purchased lumber and erected sheds, hired 10 or 12 — 470 — men, and had all of the sheep sheared. The time required was about two weeks, and Beasley paid all the expenses connected with the shearing. He sacked the wool, amounting to 60,000 pounds or over, and shipped it in his own name to a firm in Boston, Mass., and received not less than $6,000 therefor. . These undisputed facts show conclusively that the Beasleys were at that time in actual possession of the sheep for their own. purposes, in their own interests, and for their own benefit, and in no sense of the word as agents for appellants. True, W. W. Beasley testifies that Joseph Rosenbaum told him to have the sheep brought in and sheared; but such fact only makes the case stronger against appellants, as it shows that, if appellants had possession, they voluntarily surrendered the same, and that the Beasleys did not retake possession fraudulently or surreptitiously. Further, after the sheep were sheared, they were returned to the herders, who seem to have implicitly obeyed the Beasleys in all matters pertaining to the sheep, and driven back to their feeding grounds. In July George M. Beasley caused about 2,600 of said sheep to be selected out and driven to Dickinson, and shipped to appellants. There is no pretense that this , shipment was made by appellants, or by their direction or request. It was an unequivocal act of possession and ownership on the part of the Beasleys. These' actions are unexplained in this record, and their force is irresistible. True, it is not every temporary deprivation of'possession that will defeat a factor’s lien dependent upon possession. The property may be seized on legal process, or taken by fraud or force. This will not defeat the lien. It -can only be defeated by some act of the factors, and he may temporarily relinquish custody, if he retain control. Mechera, Ag. § 1037, and cases cited. Possibly he might allow the principal to have temporary possession under an express agreement reserving the lien, without losing his rights as between the parties, x Jones, Liens, § 468. But none of these exceptions can aid appellants upon this record-We are clear that no verdict in favor of appellants, based upon any possession upon their part prior to August 4, 1893, could have been sustained; hence to that extent the Court was correct in taking the case from the jury. But, by reason of matters yet to be considered, the case must be reversed, and we have considered the possession thus far in order to eliminate useless matter from the case upon the next trial. Appellants placed one P. J. Smith upon the witness stand, who, it was shown, was the general western agent of appellants in looking after their live-stock interests in Montana and North Dakota. This witness testified that, as such general agent, he received from George M. Beasley, on August 4, 1893, a writing as follows: “I this day turn over to Rosenbaum Bros. & Co. all of my sheep, which is about six thousand (6,000) head, now ranging on the Cannon Ball. Sheep are all branded with a red bar on back, thus |. George M. Beasley & Co.” When this instrument was offered in evidence, respondent objected to its introduction upon the ground that it was — 471 — immaterial under the pleadings, and did not tend to show that plaintiffs were in possession or entitled to any factor’s lien. The objection was sustained. This was error. It is true the complaint alleges that appellants obtained possession of the sheep under and through the bill of lading hereinbefore mentioned, but it also declared: “And plaintiffs further allege that, in addition to the said factor’s and merchant’s lien and bill of lading by which the said plaintiffs hold said sheep, it was expressly agreed, by and between the firm of George M. Beasley & Co. and plaintiffs, the firm of Rosenbaum Bros. & Co., that the firm of Rosenbaum Bros. & Co., plaintiffs, should have a lien as commission and merchant factors on said sheep for the general balance of' sixteen thousand one hundred and sixty-three dollars and seven cents, and the said sheep were transferred to, and the possession of said sheep was transferred to, the said firm of Rosenbaum Bros. & Co., and said sheep were in the possession of said Rosenbaum Bros. & Co. at the time they were attached as hereinafter stated.” Under this allegation, the exhibit should have been received. There was other evidence in the case tending to show that appellants were the factors of George M. Beasley.& Co., that there was a large balance due them as such factors, and that they were entitled to a lien upon the sheep by express agreement, once the sheep came into their possession as such factors. This witness further testified that he had ordered 30 cars for the shipment of the sheep; that, after receiving such writing, he went to the herding grounds in company with one of the Beasleys, and ordered the herders to drive the sheep to the railroad; that they at once proceeded to do so; and that when they were within three or four miles of Dickinson, and while so obeying the orders of the witness, the sheep were seized by the defendant. It does not specifically appear that the herders knew who this P. J. Smith was or who he represented. But the evidence tends to show that they at once recognized his authority and proceeded to execute his orders. It tended to show that when the sheep were seized by respondent they were in the actual possession of P. J. Smith, as the general agent for appellants, for the purpose of immediate shipment and sale by appellants as the factors of George M. Beasley & Co. Appellants were entitled to go to the jury upon this evidence. There must be a new trial. Reversed. All concur.