Bailey v. Adams

14 Wend. 201

• Court: New York Supreme Court
• Decided: October 15, 1835
• Status: Published

Opinion

By the Court,

Sutherland, J.

The title of Bailey to the wagon in question was sufficiently established. Drake waived his lien upon it for making and painting the box, by his special agreement to take his pay in tailoring from Collier, except to the amount of two dollars which Bailey was to pay. It is evident that the personal credit of the parties was intended to be relied upon. No time was fixed within which the tailoring was to be done, and if the lien was not to be considered as waived, it might continue for an indefinite time. It seems to be well settled that a special agreement of this description discharges the lien. 2 Kent’s Commentaries, 500. 16 Vesey, 275. 1 Mason, 191. 4 Wheaton, 255. 9 Cowen, 52. It is unnecessary therefore to consider the question, whether a third person can avail himself of the lien in favor of a mechanic, in order to defeat an action of trover brought to recover the chattel. There are authorities on both sides of the question. 2 N. Hamp. R. 319. 5 T. R. 606. 7 East, 5. 2 Saund. 47, b. 9 Gowen, 52. 6 Wendell, 608. 4 id. 292.

But I do not think that enough was done by the defendant ‘ to constitute a conversion. He directed a levy upon the wagon while unfinished at the shop of Drake; he did not take possession of it, but left it as he found it, and as soon as he was informed that the plaintiff claimed the wagon, he gave him notice that he relinquished all claim or right to it. The actual possesion of the property was not changed; the plaintiff was put to no charge in respect to it, and I think ought not to be permitted to sustain this action. See Reynolds v. Shuler, 5 Cowen, 323, and Bristol v. Burt, 7 Johns. R. 254, where all the cases are referred to.

Judgment affirmed.