Au Sable River Boom Co. v. Sanborn

Cooley, Ch. J: This case comes before us upon a finding of facts, of which- the following are the material portions: “During the years 1874 and 1875 William Sanborn and •James M. Sanborn were engaged in lumbering business, as partners, under the firm name of Wm. Sanborn & Brother. “During the years of 1874 and 1875 the .plaintiff rafted a quantity of pine logs and timber for said Sanborn & Bro., •delivering different rafts to different tugs for them. “On the 21st day of August, 1875, the plaintiff left in “tow of the tug Wilcox, for said Sanborns, a raft which the ^plaintiff had rafted for them, and received their acceptance [362] therefor, payable in sixty days, which, with interest included therein for sixty-three days, amounted to eight hundred and forty dollars and forty-seven cents, which the plaintiff procured to be discounted on endorsing the same. “On the 5th day of October, 1875, the plaintiff left in tow of the tug Livingstone, for said Sanborns, a raft of logs which the plaintiff had rafted for them, and received their acceptance for such rafting for the sum of eleven hundred and ninety-six dollars and ninety-two cents, due in ninety days, which acceptance included interest for ninety-three days at ten per cent. These logs were rafted at the request of Sanborn Brothers. “January 6th plaintiff received an order from Sanborn Brothers, dated September 20, 1875, directing the plaintiff to deliver all of their, Sanborn’s, logs and timber in the Au Sable river to Howard & Son, meaning John Howard and Henry Howard. “During the seasons of 1874 and 1875 the plaintiff received within their boom limits in the Au Sable river, six hundred thousand feet of pine logs, being the same logs described in the petition filed at the commencement of proceedings, and a portion of the same lot of logs from which the rafts were made and acceptances given. These logs were transferred from the boom limits, so called, into the booms-of the plaintiff, or most of them, between the first of October, 1875, and the first of December, 1875. The boom limits referred to embrace all of the. Au Sable river above the plaintiff’s boom for a distance of thirty miles, and in which the plaintiff receives logs and runs them to their booms. Said logs were purchased by Howard & Son, September 20, 1875. “No part of the two acceptances hereinbefore mentioned and described, or either of them, has been- paid, and there is now due thereon, exclusive of interest, the sum of two-thousand and thirty-seven dollars and thirty-nine cents, as set forth in the plaintiff’s petition. “No demand has been made upon Howard & Son, nor [363] upon any other person or persons, for any charges, either for running, sorting, booming, rafting, care and storage of said six hundred thousand feet of logs and timber, or any part or portion thereof. “The usual custom of the plaintiff is to require payment for the running, sorting, booming, rafting, care and storage of logs and timber, on delivery of the same to the owner, but in consenting to take the acceptances of Sanborn & Brother as aforesaid, the same was at their special request,, and as an accommodation to them. “Immediately upon receipt of an order from Meásrs. San-born & Brother to deliver the logs and timber to Messrs. Howard. & Son, they were notified (between the 10th and the 15th of January, 1876), by letter, that plaintiff held the said logs and timber for an account due from Messrs. Sanborn & Brother of two thousand and thirty-seven dollars and thirty-nine cents, and claimed a lien thereon for the-satisfaction of the same, but no legal proceedings were taken in the matter until the filing of the petition in this cause.” Hpon these facts the circuit judge gave judgment against the lien. In this we think there was no error. The taking of the acceptances, according to the well settled doctrine in this state, was not payment of the demand in the absence of evidence of an agreement that they should be received in payment.—Gardner v. Gorham, 1 Doug. Mich., 507; Hotchin v. Secor, 8 Mich., 494. There is no evidence of such an agreement here. It does-appear, however, that the acceptances taken were payable at a future day, and we understand from the finding that, they covered the whole amount then due. As no agreement to the contrary is shown, the owners of the logs must have had the right to demand and receive them at any time, subject to the payment only of any sum then due; for we cannot imply an understanding that the logs on hand should ■be retained as security for the payment at a future time of a sum not presently payable. The owners of the logs, therefore, must have had a right to remove them after the [364] ••acceptances were given; and if so, there could have been •no lien, and a lien once lost could not be revived by the ■maturing of the acceptances. If once waived it is permanently lost.—Cowell v. Simpson, 16 Ves., 275; Hewison v. Guthrie, 2 Bing. N. C., 755. If there could be any ■question of this as between the boom company and the •original owners, there could be none as between the com,pany and a third person to whom the property is sold without notice of any claim for services in respect to logs previously delivered. If one by his purchase acquires an ¡immediate right to remove his property, he cannot lose it by any subsequent default of his vendor. The Howards made their purchase September 20, 1875. <One of the acceptances was then out; the other was taken •before the boom company was notified of the purchase. While the boom company were justified in continuing to' •deliver to the Sanborns until they were informed that they •had parted with their interest, it does not follow that as .against purchasers they could retain a lien for services on logs actually delivered. Purchasers would have no implied notice of such a lien, and if informed that one had existed, but that the logs had been delivered on receiving negotiable paper for the amount, would have had a right to suppose the paper was received in payment. The judgment must be affirmed, with costs. The other Justices concurred.