McDonald & Co. v. Bennett

Day, J. — The court found the facts to be substantially as follows: On the 5th day of September, 1874, Frank Robinson, the owner of the property in controversy, executed a chattel mortgage thereon to plaintiff, which was recorded on the 10th day of September, 1874. The. mortgaged property was permitted to remain in the possession of the mortgagor. On the 20th day of June, 1875, Robinson employed the defendant, who is a livery stable keeper, to feed and care for the property in controversy, and delivered it to the defendant, who kept the same until it was- taken from him on the writ of replevin, and was to receive six dollars per week for his care and feed. At the commencement of the suit there was due the defendant for keeping the property the sum of $116.91. Defendant had no actual notice of the mortgage. Before the commencement of suit plaintiff demanded the property in dispute, and the defendant refused to deliver the same till his charges were paid. As a conclusion of law the eourfr found that defendant has no lien on the property in dispute as against the plaintiffs. i. ufest: livery lias none. I. It is fully settled that at common law a livery stable keeper has no lien for his care and feeding upon horses left with/ him. Such lien exists in favor of an innkeeper, principally upon the ground that he is bound to entertain and provide for any one who presents himself in proper condition as a guest. The keeper of a livery stable is under no such obligation to take and feed the horse of a customer. Of the many cases cited by appellant not one of them sustains the existence of a lien in favor of the keeper of a livery stable, except Young v. Kimball, 23 Penn. St., 193, and in that case the lien was created by statute. In Grinnell v. Cool, 3 Hill, 485, it is said: “The right of lien has always been admitted where the party was bound by law to receive the goods; and in modern times the right has been [458] extended , so far that it may now be laid down as a general rule tbat every bailee for hire, wbo by his labor and skill has imparted an additional value to tbe goods, has a lien upon tbe property for bis reasonable charges. This includes all such mechanics, tradesmen and laborers as receive property for tbe puipose of repairing, or otherwise improving its condition. But tbe rule does not extend to a livery stable keeper for tbe reason tbat be only keeps tbe horse, without imparting any new value to tbe animal. And besides, be does not come within the ■ policy of tbe law which' gives tbe lien for tbe benefit of tráde. Upon tbe same reasons tbe agister or farmer wbo pastures' tbe horses or cattle of another has no lien for their keeping unless there be a special agreement to tbat effect.” Tbe same doctrine is announced in tbe following cases: Bevan v. Waters, 3 C. & P., 520; Miller v. Marston, 35 Maine, 153; Fox v. McGregor, 11 Barb., 41; Judson v. Etheridge, 1 Cr. & M. 743; Jackson v. Cummins, 5 M. & W., 341; Hickman v. Thomas, 16 Ala., 666. 2.-: construction of statute. II. Appellant claims, however, that' a lien is given by section 2177 of tbe Code. This section isas follows: “Personal property transported by or stored or left i , with any warehouseman, forwarding and commission merchant, or other depository, express company or carriers, shall be subject to a lien for tbe just and lawful charges on tbe same, and for tbe transportation, advances and storage thereof.” It is claimed tbat tbe words other depository include a livery stable, keeper. It is not necessary, perhaps not proper, tbat we should now undertake to put a definitive construction upon this section, and declare to what it does and does not apply. It is sufficient in this case to say tbat in our opinion it does not give a livery stable keeper a lien upon tbe horse of a customer fed at bis stable. No one would think of saying tbat bis horse kept at a livery stable to be fed was deposited with tbe keeper of tbe stable, or tbat tbe livery stable keeper was tbe depository of tbe horse. Tbe judgment is Affirmed.