Partridge v. Trustees of Dartmouth College

5 N.H. 286

• Court: Superior Court of New Hampshire
• Decided: November 15, 1830
• Status: Published

Opinion

RichaRdson, C. J.,

delivered the opinion of the court.

It is not denied, that Mr. Olcott had a lien, originally upon the boards for the price of the sawing.

But it is contended on behalf of the plaintiffs, that the boards which were purchased by the defendants having been surveyed and delivered to the agents of the defendants by the plaintiffs, the lien on those boards was thereby lost.

This ground is clearly untenable. It does not appear that Mr. Olcott had any notice of this survey and delivery, or in any way assented to the proceeding, and surely a delivery without his consent could not affect his rights. 1 C. & P. 575, Wallace v. Woodgate.

It is further said on behalf of the plaintiffs, that the lien upon the hoards sold to the defendants did not extendbe-yond the price of sawing those hoards.

It is not pretended that Mr. Olcott had any general lien upon the boards. But as all the boards he had sawed for the plaintiffs had been sawed under one contract, it is very clear that he had a lien upon every part of the boards for the price of sawing the whole. 6 East, 622 ; Yelv. 67, note ; Abbot on Shipping, 281 ; 3 M. & S. 168, Blake v. Nicholson.

The payment then which the defendants made to Mr. Olcott, cannot be considered as a voluntary payment, but was a payment they were compelled to make, in order to obtain the boards. And we are of opinion, that it must be considered as a part payment to the plaintiffs of the price of the boards. 5 Bing. 406, Carter v. Carter; 4 Starkie’s Ev. 102; 6 Taunt. 524, Taylor v. Zamira ; 3 B. & A. 516, Stubbs v. Parsons ; 1 B. & B. 37, Andrew v. Hancock ; 1 B. & A. 123, Denby v. Moore ; 4 D. & E. 511, Sapsford v. Fletcher.

Judgment for the defendants.