Gayarre v. Tunnard

Campbell, J. The petitioner alleges that on the 9th of September, 1852, the defendant, W. Ft Tunnard, though thereto demanded, refused to deliver the possession of a four wheeled carriage belonging to him ; and that he detains the same illegally and maliciously. He prays for the restitution of the carriage, and for $1000 damages for its detention. The defence is a general denial, and a special denial that his conduct towards petitioner has been malicious or illegal; alleging that the suit of plaintiff is malicious and ungrounded in law, and brought with the intent of annoying and harrassing him; he claims damages in reconvention. The case was tried by a jury, and in conformity with their verdict, a judgment was rendered in plaintiff’s favor, decreeing the return of the carriage and sentencing defendant to pay twenty-five dollars as damages, and the costs of suit. Prom the judgment and fine rendered, this appeal has been prosecuted. Though the issues presented by the pleadings are simple and easy of solution, this case has become much complicated by the manner in which this trial was conducted in the court below. Testimony not strictly admissible under the pleadings, has been offered and received without objection, and the effect of which has been to change materially the issue as made up. The facts of the case as disclosed by the record, are substantially as follows : Plaintiff, on the morning of the 9th of September, sent his carriage to the shop of defendant, who is an artisan, to be repaired. The repairs were made, and are proved to be worth two dollars, the sum charged. Defendant refused to deliver to plaiptiff the cai'riage, until he should be paid this sum. This plaintiff refused to do, but proffered to and actually did deposit with Dufroe, Mayor and Justice of the Peace of Baton Rouge, the sum demanded, subject to the claim of defendant upon his establishing his right to it. The money thus deposited was never demanded by defendant, and was withdrawn on the 14th of the same month by plaintiff, The defendant maintaining, that under the Article 8184 of the Civil Code, he had the right to keep possession of the carriage until payment of the price of repairs, has excepted to the charge of the Judge, who instructed the jury that defendant had no such right, but that it should have been delivered up immediately on demand, and that the jury consequently were bound to render a verdict in favor of plaintiff for the carriage, and for such damages as they might consider he had suffered by its detention. We think the court erred in charging the jury, that defendant had no right to detain the carriage until payment for the repairs was made. The right [255] necessarily results from the second paragraph of Article 3184 of the Civil Code, which expressly accords this privilege to “the debts of a workman or artisan, for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession.” This rule — the artisan’s droit de retention — is derived from the Roman Law, (See Yoet cited Trop. Priv. 'et Hyp. vol. 1, No. 264,) and is analogous to the particular lien given in like cases by the common law, which their writers define to be “ the right to retain the property of another for a charge on account of labor bestowed upon it,” (2 Kent Com. 634,) which right, as has been held by their courts, continues while the possession is retained, but is lost by a voluntary surrender. Holly v. Hungerford, 8 Pick. 73. Moore v. Hitchcock, 4 Wend. 292. In Jordan v. James, 5 New Ham. 88, it was held that the possession of the object on which the li.en is claimed to operate, is the very essence of the lien. It was necessary for the plaintiff before demanding the possession of his carriage judicially, either to have paid the charge for repairs, or, in case he deemed it excessive, to have made to the defendant a tender of such sum as the repairs were reasonably worth, and the Judge should so have instructed the jury. We must not be understood as intimating that the law accords no other remedy to the artisan, than that which results from the right of retention, or that the exercise of this right precludes the artisan from enforcing his privilege by a sale of the thing, as in other cases of privilege. The two remedies may exist together, and are not inconsistent with each other, and a decision of that question is not necessary in the present case. We are further of opinion, that the Judge erred in charging the jury that, “ inasmuch as defendant in his answer, had not expressly claimed his privilege, the jury could not take into consideration the question of privilege at all.” The reasons assigned by the court might perhaps have warranted the rejection of testimony to establish these facts, on the ground that, not being alleged, they might be a surprise to the plaintiff; but this omission in the pleadings has been cured by the reception, without objection, of testimony fully establishing all the essential circumstances deposed to. In the case of Powell v. Aiken & Gwinn, 18 La. 328, it was hold, that a party who suffers evidence to be introduced without opposition or objection, although contrary to and beyond the allegations contained in the pleadings, is bound by its effect. The record, moreover, furnishes abundant proof that the evidence could not have been a surprise to plaintiff; the principal facts established by it having been detailed in a letter to defendant of the 10th of September, written the day after the institution of his suit, and afterwards affirmed by his own witness in reply to direct interrogatories and in defendant’s letter to plaintiff, both of which letters were offered by plaintiff. Ory v. Winter, 4 N. S. 277. Frierson v. Irwin, 5 An. 531. Waterman v. Gibson, 5 An. 673. The conclusion to which we have arrived in referrence to the charge of the Judge, renders it unnecessary for us to examine the bills of exception taken by defendant’s counsel to the admissibility of certain evidence objected to by him, but received by the court. It is therefore ordered, adjuged and decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment in favor of the defendant as in case of nonsuit; that the costs of both courts be paid by the plaintiff and appellee.