Cody v. Vaughan

Rombauer, P. J. — This is an action of replevin, by which the plaintiff seeks to recover from the defendant one steam boiler and its appurtenances. The defendant is the statutory assignee of Cunningham & Murphy, and filed two.answers in the case. By the first answer he claims to be owner of the property as assignee of Cunningham & Murphy under the general assignment statute. By his amended answer he says that the boiler was delivered by the plaintiff to his assignors to be repaired under a contract by which they were authorized to repair the same and sell it, deducting from the proceeds of sale the cost of repairs, and accounting for the residue to the plaintiff; that under this arrangement his assignors did expend $50, [172] in work on said boiler, for which they had an artisan’s lien, subsisting at the date of the assignment, and the defendant now holds the property by virtue of said lien. The plaintiff did not object to the filing of this amended answer, but replied thereto and stated in his reply the following facts, in substance: He and one Eilley were, at the date of the transactions mentioned in the answer, in partnership as contractors and builders under the firm name of Oody & Eilley. The firm had a running account with Cunningham & Murphy, which account contained mutual credits; and, when said boiler was delivered to Cunningham & Murphy for repairs, it was agreed between all the parties that the latter should not be paid anything for such repairs, unless their claims on running account should exceed in amount the claims which Cody & Eilley, as a firm, and each member thereof individually had against Cunningham & Murphy. The reply then proceeded to state that a settlement of such mutual accounts left the firm of Cunningham & Murphy at the date of the assignment indebted to the plaintiff in the sum of ‡75, which claim had been allowed by the assignee of Cimningham & Murphy in plaintiff’s favor, and that, therefore, the pretended lien claimed by the assignee was false and fictitious, and was paid and discharged long before the assignment to the defendant. The cause was tried by the court without a jury. The court found that the property was worth $300, and that the defendant as assignee had a lien thereon to the extent of $34.20. The court, therefore, ordered that the plaintiff pay to the defendant the sum of $34.20 and costs, or in default of his doing so return the property to the defendant. The errors assigned are that the court tried the cause on.an erroneous view of the law, as shown by its instructions, and that [173] under the conceded facts the judgment in favor of plaintiff for the property should have been unconditional. The testimony tended to show the following facts: The boiler in question belonged to the plaintiff, and was delivered to Cunningham & Murphy, who are machinists, under the agreement stated in the amended answer. If this fact be true, and there is no substantial evidence to the contrary, they had a double lien on the boiler, first as artificers at common law, and next by special contract. Monteith v. Printing Co., 16 Mo. App. 450. This lien was never waived, because the mere fact that it might be waived by the fact, that the balance on general account between them and Cody & Eilley was against them, did not operate as a waiver, unless such balance was] shown to have been against Cunningham & Murphy at the date of the assignment. But it is shown by conclusive evidence that the general balance at the date of the assignment was in favor of Cunningham & Murphy. Cody & Eilley ¡presented all their claims, in eluding the claim for $75 which the plaintiff now claims as his individual property, to the defendant assignee for allowance, and the defendant rejected them on the ground that the valid and subsisting claims of Cunningham & Murphy against Cody & Eilley exceeded in amount the claims of the latter against the former. This finding was a judgment, and, being unappealed from, concludes the plaintiff as to any claim against the assigned estate arising from a general balance in favor of his firm or himself. Revised Statutes, 1889, sec. 446; Eppright v. Kauffman, 90 Mo. 25; Nanson v. Jacob, 93 Mo. 331, 334; Board of Public Schools v. Estate of Bank, 12 Mo. App. 104; s. c., 84 Mo. 56. There being no such balance, there was nothing to operate as a waiver of the defendant’s lien. [174] Plaintiff contends that the court erred in holding . that the defendant as assignee could assert either an •artificer’s lien or a lien by contract which his assignors had. We might dispose of this’objection by stating that the pleadings raised no such issue, and that the defendant’s evidence in support of his lien was •admitted without objection, and that a party will not be permitted to try his case on one theory in the trial court, and on another theory on appeal. Trigg v. Taylor, 27 Mo. 245; Walker v. Owen, 79 Mo. 563; Nance v. Metcalf, 19 Mo. App. 186. We are prepared, however, to dispose of the objection on a broader ground. It is. true that artificers’ liens are not assignable, because they are personal rights dependent upon the possession of the •chattel. As the artificer has no right to assign the •chattel, because he has only a right to retain the same, and as, independent of the possession of the chattel, the lien has no existence, a valid assignment of such lien becomes impossible. But a general assignee under the statute occupies a different position. By the act of assignment he becomes at once possessed of all the rights his assignors possessed, whether mere possessory rights or other. He is a general trustee, as any other personal representative, and it is not only his right but his duty to realize upon all such rights and enforce them. Eppright v. Nickerson, 78 Mo. 482, 490; Shockley v. Fisher, 75 Mo. 498, 502. An assignee under the statute occupies in that regard the same position as his assignor did. There is no controversy on the evidence touching the fact, that the firm of Cunningham & Murphy had at the date of the assignment to the defendant a lien to the extent of $34.20 for work done on the boiler. The assignee’s judgment precludes the plaintiff from asserting that this lien was extinguished [175] by a balance against them on general account. It results from this that the judgment of the court was correct on uncontroverted facts, regardless of any view of the law taken by the court, and must be affirmed. All the judges concurring, the judgment is affirmed.