Elliott v. Hodgson & Jackson

65 S.E. 405, 133 Ga. 209, 1909 Ga. LEXIS 190

• Court: Supreme Court of Georgia
• Decided: August 13, 1909
• Status: Published

Opinion

Atkinson, J.

If Eeeves acted as the agent of the defendants in making the contract with the plaintiff, whether his principals were known to the plaintiff at the- time or not, in seeking to enforce the contract made by him or rights arising thereunder, the defendants would be bound by all the terms of his agreement. If that agreement was as contended by the plaintiff, the defendants had no lien upon the horse, as they were bound to pay all the expenses incurred in connection with keeping it and entering it at races. The defendants by their pleadings allege that they received the horse under the contract made by Eeeves with the plaintiff; and therefore they are not in a position of setting up a livery-stableman’s lien on account of a horse received for its keeping from a third person, regardless of the true ownership. As to this feature of the case it must depend on what was the contract, not upon what rights the defendants might have on account of earing for the horse independently of such a contract with the owner. Livery-stable keepers have a lien on the stock placed in their caie for keeping. Civil Code, §2810. At common law a livery-stable keeper had no lien unless by contract therefor. Jackson v. Holland, 31 Ga. 339. His lien in this State is statutory. Different definitions have been given of a livery-stable keeper. In 19 Am. & E. Enc. L. (2d ed.) 430, it is said: “A livery-stable is a building where horses or vehicles are kept or let for hire. A livery-stable keeper is of course the keeper of such a stable.” Other definitions are: “One whose business it is to keep horses for hire, or to let, or to keep, feed, or board horses for others.” Abbott’s L. D.; Anderson’s L. D.; Black’s L. D. “One who takes horses to bait and board; and he usually keeps horses to let.” Groves v. Kilgore, 72 Me. 489. And a livery-stable has been said to be “A place where horses are groomed, fed, and hired; where vehicles are let.” Williams v. Garignes, 30 La. Ann. 1094. The Standard Dictionary defines a livery-stable to be “A stable where horses are kept at livery and for hire, and vehicles are let.” Webster’s International Dictionary defines a livery-stable to be “A stable where horses are kept for hire, and where stabling is provided.” We do not think that it would be absolutely necessary for a stable-keeper to exercise all of the different functions which may sometimes be performed by him, and which are mentioned in the different definitions above quoted, in order to be a livery-stable keeper within the meaning of the lien law, but his business must be substantially that so indicated. Some livery-stables may do a more contracted business than others, without destroying their status as such. The question is one of substance rather than of verbal and exact definition. Whether or not the defendants were livery-stable keepers was a question of fact. If they were not, they had no right to a lien as such, although they might have kept the plaintiff’s horse under a contract to do so. If they were livery-stable keepers, and the contract with the plaintiff was as contended by them, they were entitled to a lien, and this would include not only the actual feeding of the horse but also such charges directly connected with his keeping as were naturally in the line of a livery-stable keeper’s business. Carrying horses to distant race-tracks and there racing them is not a part of keeping a livery-stable, within the meaning of the lien law. Expenses of transporting the horse by railway to places where races were to be conducted, in and out of the State, or of entering it in such races, and like expenses, were not such charges as would furnish the basis for a livery-stable keeper’s lien. We are not dealing with questions of bailment generally, or labor liens, or common-law liens, but with the particular statutory lien of a livery-stable keeper as provided in Civil Code, §2810, which was sought to be foreclosed in this case. If a horse were left with a livery-stableman to be boarded or kept at a specified price, and the liveryman had stables in two or more towns in the State, where he conducted business, and by agreement with the owner he whs kept in different stables of the same liveryman, the latter would doubtless have a lien not only for the charge at the original stable where the horse was placed, but at the other stables of the keeper in this State. But a livery-stable keeper’s lien is for the benefit of the keeper of the stable where the horse is cared for. If the defendants were liveTy-stable keepers, and, under contract with the plaintiff, sent the horse for racing purposes to distant points, where it was kept, not in the stable of the defendants, but in the stable of other persons, although the defendants may have paid the stable charges, this would give them no lien upon the horse for the keep. Such-expenses might raise a claim on behalf of the defendants as contract charges, if their contention as to the contract was correct, but would not create a lien in their favor as livery-stable keepers.

The presiding judge charged: “On the other hand, if you believe the contract was made as contended by defendants, that is, made by Elliott with Eeeves as agent for Hodgson & Jackson, and the terms were stipulated as insisted upon by the defendants, and he had expressly agreed to bear all expenses, as well as feeding the horse, and agreed to give them a lien upon it, then it would be your duty to find out what the evidence shows that to be, and return a verdict in their favor against the plaintiff for whatever it amounts to;” and also: “If you believe in this case, however, that Elliott did not make that express contract that he should pay for the feeding of the horse and bear all these expenses and give a lien for the entire thing, but that he did agree to pay for, and that he should have a lien therefor, for feeding and keeping the horse and training him while here and elsewhere, and taking care of him and attending to him here and elsewhere, and that they have not been paid, then the court instructs you that if the defendants themselves have borne all the expense of feeding him here and elsewhere, that the defendants would be entitled to a verdict against the plaintiff.” There was no evidence of any agreement on the part of the plaintiff that the defendants should have a lien for any particular services, nor was any lien by contract set up in the pleadings. If they had a lien, it was not by contract, but such as the statute gave them. As there was a conflict in the evidence as to what was the contract, and as the defendants were claiming a lien as created by statute because of an alleged contract for the keeping of the horse, this reference to a lien by contract, several times repeated, was not adjusted to the evidence, and was calculated to mislead the jury, and perhaps cause them to think that a contract to do certain things in regard to a horse included a contract to create a lien upon it for those services, whether they were such as the statute in this State would create a lien for or not. It is true that the judge wrote off a part of the recovery, and left standing only what he considered well authorized by the evidence; a^d also that he charged that unless the evidence showed that there was an express contract for a lien, the jury would not consider the court’s instructions on that subject; but' we can not say what effect on the minds of the jury may have been produced by these references to whether the plaintiff had agreed or contracted for the defendants to have a lien on the horse for various services, when there was no evidence to authorize them. This error went not merely to the question of amount, but to the question of establishing a lien. These charges may also have led the jury to believe that they might find a lien to exist in favor of the defendant for items which were not properly those of a livery-stable keeper.

Taken alone, some of the charges on which error was assigned were subject to criticism in using such expressions in regard to the defendants as, “in their line of business as livery-stable keepers,” and, “they would have a lien as livery-stable keepers for all these items, if you find that- to be the contract.” Expressions of this character standing alone might have been understood by the jury as meaning that the presiding judge recognized the defendants as livery-stable keepers, and dealt with them as such, whereas whether they were or not was a question for the jury. Although qualified by other portions of the charge, it would have been better not to have so charged as to authorize such impressions on the mind of the jury. But this will probably not occur on another trial.

Judgment reversed.

All the Justices concur.