Lynde v. Parker

30 N.E. 74, 155 Mass. 481, 1892 Mass. LEXIS 353

• Court: Massachusetts Supreme Judicial Court
• Decided: February 23, 1892
• Status: Published

Opinion

Lathrop, J.

No question arises in this case as to the extent of the defendant’s lien. Nor was any exception taken to the submission to the jury of the question whether the defendant had a valid lien on the horse. The only question is as to the correctness of the instruction given.

By the Pub. Sts. c. 192, § 32, “ Persons having proper charges due them for pasturing, boarding, or keeping horses or other domestic animals brought to their premises, or placed in their care by or with the consent of the owners thereof, shall have a lien on such horses or other domestic animals for such charges.” It was held in Howes v. Newcomb, 146 Mass. 76, that a mortgagor is not the owner within the meaning of this statute, but the mortgagee is. It was said that “ undoubtedly an implied consent will answer the requirements of the law,” and that “ in every case of this kind the inquiry is whether such implied consent is proved,” and that this “depends, where animals are left with a mortgagor by a mortgagee, not only upon the terms of the express contract in relation to them, but also upon all the circumstances surrounding the transaction, indicating the expectation of the mortgagee as to the management of them by the mortgagor.” If from these the mortgagee may be presumed to have understood that the mortgagor would take them to a stable keeper to be boarded, and no objection was made, such consent should be implied, otherwise it should not.

The instructions given were in accordance with this statement of the law, and were correct.

Exceptions overruled.