Thatcher v. Harlan & Hollingsworth

7 Del. 178

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

Houston J.,

delivered the'opinion of the Court: In one respect, at least, the case before the Court differed from any which had been cited in the argument; for whilst in the eases referred to, the action was in trover and the question arose on the evidence in a trial at bar, in the case then before them, the action was replevin for a wrongful detention under the statute, in which the question had been entirely eliminated and developed in the pleadings on the record and was now presented for the consideration of the Court on a general demurrer in which they had resulted. He adverted to this circumstance in passing, not for the purpose of suggesting that it presented any substantial distinction in principle between the cases, but merely to note the fact, that the question appeared now for the first time to have arisen in this well defined and specific form for the consideration and decision of the Court.

As the effect of the demurrer was to admit the allegations contained in the replication, and the replication itself admitted the allegations contained in the plea, the simplej|uestian_presenfe4-fe^-4ffe consideration of the court was, whether the defendants who had a specific lien oxTtftffproperty in question for work done upon it, and also other charges against the former owners of it, but which had no connection with, or relation to, the particular article in question had waived, or lost their lien, or right to detain it against the plaintiffs in the present action by refusing at the time of their demand to deliver it to them, until the whole of their account was satisfied, without naming their charge for the work done upon it, or insisting upon their lien or right to retain it for that particular sum among other matters of account then due them from the previous owners of it, who had placed it in their possession for repair in the way of their usual business and employment. Whilst thus in possession of the boiler, the plaintiffs succeeded to the right of the former owners, the steamboat company, by their purchase at the sale of it by the sheriff, and now stood in the same relation to the defendants with regard to it, which the Company held prior to the sale. After their purchase, the plaintiffs made a formal demand upon the defendants for the property, but without tendering them the amount of their charge for work done upon it, and the defendants refused to deliver it, until they were paid the balance of a general account for a much larger amount which they had against the company at the time of the sale by the sheriff; but without making any mention of their special demand for the repairs done upon it, or of their specific lien, or right to retain the possession of it until they were paid or tendered that particular sum. And such being briefly the facts of the ease, the question now presented was whether the defendants, by so doing, had waived their lien and lost their right to detain the boiler for the amount of that particular claim, or might now avail themselves of it, the same not having been paid, or tendered to them by the plaintiff, as a good defence in the present action.

The general principle of law in regard to specific liens of this nature, and the right of a party to detain goods under a claim of this character, had long been understood and was well established. Boardman v. Sill, 1 Campb. 410. (note) in the time of Ld. Ellenborough, was an early and leading case on this subject, in which it was ruled that inasmuch as the goods in question had been detained on a different ground from that which was set up at the time of the trial, and as no mention had been made at the time of the demand and refusal to deliver the goods, of the charge for which the lien then existed, the defendant must be taken to have waived his lien and dispensed with the necessity of a tender by the plaintiff for that amount. And to the same effect were the subsequent cases of Thompson et al. v. Trail et al. 13 Eng. C. L. R. 103. Jones v. Cliff, 24 Eng. C. L. R. 455. Dirks v. Richards, 43 Eng. C. L. R. 298. Jones v. Tarleton 9 Mees, and Wels. 674. Gross on Lien, stated the general rule on the subject in the following terms. “ A party having rightful possession of goods under a claim of lien, ought to state the nature of such claim and the amount for which he detains the goods at the time when repossession is demanded. Retention on a ground inconsistent with the existing right, without any claim in respect of the amount under which a person may legally withold them, operates as a waiver of the lien and trover will lie for the recovery of the goods without evidence of any tender of the latter amount,” 34 Law Libr. 46.

It had been argued, however, on behalf of the defendants that this was the rule only, when the two claims were in their nature inconsistent, or incompatible with each other; but that such was not the rule where the larger claim, as for a general balance, in fact included the minor, or special charge for which the lien existed ; or in other words, to insist upon detaining the goods for an excessive demand merely, for which the party had no right to detain them, would not operate as a waiver of the lien for a particular charge, for which the party had at the time a legal right to detain them, unless they were so different in their nature, as to be positively inconsistent with each other, or the party withholding the goods, did something to dispense with the necessity of a tender of the latter sum by the party demanding them and notwithstanding no mention whatever was made of the particular charge at the time of the refusal to deliver them. For which we were referred to the authority of Scarfe v. Morgan, 4 Mees, and Wels, 270. Everett v. Coffin and Cartwright, 6 Wend, 603. White v. Gainer, 9 Eng. C. L. R. 302. Owen v. Knight 33 Eng. C. L. R. 237. Buckley v. Hanby, 2 Miles’ Rep. 449, Green v. Shewell, Cross on Lien, 34 Law Libr. 47. Add. on Contr. 1177. Cross on Lien, 32 Law Libr. 45. But after a careful consideration of those authorities the. court could not perceive that they materially modified the principle as stated and ruled in the earlier cases, or sustained to the extent claimed for them, the construction contended for by the learned counsel for the defendants.

It was evident from the report in the ease of White v. Gainer, that the court considered that the reply of the defendant at the time of the demand and refusal, although general in its character, had direct reference to his claim for which the lien existed, and to nothing else, and therefore held that a tender of the amount of it was necessary on the part of the plaintiff. The next case cited of Owen v. Knight, was not in point, because it was not a case of a general balance of account with a particular charge and a specific lien as to the latter, for work done upon the article demanded, but was merely the case of an indenture deposited as a pledge, or security by special agreement, for a loan of money advanced upon it, in which none of the court, except Vaughan J., alluded at all to the principle involved in the present case; and what he said concerning the case of White v. Gainer, clearly implied that he considered it as agreeing in principle with the case of Boardman v. Sill, for he referred to that case also for the same purpose, although neither of them would be found on examination, to sustain the remark which he was reported to have made in relation to them. In the case of Green v. Sewell cited from Gross on Lien, 34 Law Libr, 47, the claim of lien was for repairs on a carriage, some of which had been ordered, but some had not, and it was held that an unsevered claim for the whole of the repairs was no waiver of the lien for the amount actually due. But the ease was clearly distinguishable from the one before the court, because in that ease the charges were all for work performed upon the carriage, and it would neither be reasonable nor just that a person should forfeit his lien for the work which he was ordered to do, by doing more than he was directed, for its benefit and improvement and demanding payment lor the whole, although he might not be entitled under the circumstances to any remuneration for the excess. The court therefore held, and very properly we think, that it was the duty of the plaintiff in that case, to tender the amount due for the repairs which were ordered, and for which the de fendant had a valid lien on the carriage at the time of his refusal to deliver it.

But the leading case on the subject and the one which had been most pressed and commented on in the course of the argument, as sustaining the distinction taken by the defendants, was that of Scarfe v. Morgan, 4 Mees, and Wels, 270. The court had consequently examined it with care and attention and were of opinion that it also failed to sustain their point, and differed in one material respect, at the least, from the case then before them for their decision. For it was obvious both from the statement of the case by the reporter and from the remarks of Parke B. in announcing his opinion, that in that case the defendant had a particular charge amounting to the sum of eleven shillings for which he had a good and subsisting lien on the property in question, and that he specially and expressly mentioned that particular sum, as one of the items of his demand at the time of his refusal to deliver it to the plaintiff, although he claimed at the same time, the right to detain the property for other items, or for a general balance and for a larger amount than his lien covered. And it was in consideration of that fact, that the defendant did expressly mention this particular charge and assert his right to retain the goods for that demand as well as for other and further claims for which, however, he had no specific lien on the chattel in question, that the court held that he had not waived his lien for that particular charge, nor dispensed with the necessity of a tender of that amount by the plaintiff. And the same observation would apply with equal justice and propriety to the case of Everett v. Coffin and Cartwright cited from 6 Wend. 603, for it distinctly appeared in the report of that case also, that the specific charge for which the defendants had a good and valid lien, and which was included in their general claim against the plaintiff for which they had no lien, was expressly mentioned by them at the time they asserted their right to retain and refused to deliver the cargo, until their whole demand was satisfied In this latter case the particular charge was for freight and average, and for money expended in the transhipment of the cargo, for which they had a specific lien upon it, until the same were paid, and in delivering their opinion the court notes the fact that these charges were expressly stated by the defendants as a part of their demand at the time they claimed the right to detain the cargo ; and it was accordingly ruled that they had not waived their lien, or right to retain the goods until the amount of those particular charges was satisfied ? or tendered to them.

The court was therefore of the opinion, that the only principle fairly deducible from a consideration and comparison of all the cases referred to, was this; that notwithstanding a party having a specific lien on goods in his possession for work and labor performed upon them, cannot, as a general thing, be permitted on the trial to rest his refusal to deliver them on a different and distinct ground from that on which he claimed a right to detain them at the time of the demand and refusal, and if at the time of such demand and refusal he insisted on detaining the goods for a general balance of account merely, or for a claim for which he had no specific lien upon them, he could not afterwards in an action for them, claim a right to retain them for a particular charge for which he had such a lien upon them, yet the rule was subject to this exception, that if he had a general claim against an owner of the former character including a particular charge of the latter description and he specially states or mentions the latter demand at the time of his refusal to deliver them and asserts his right to detain them for that amount and also for the general balance, or general account including such particular charge, it would not operate as a waiver of his lien for such particular charge so specially mentioned or referred to by him, and no action could be maintained against him for the goods in such a case, without a previous tender of that amount, at least, to him. But if on the contrary, a party having such a particular and general demand, should claim the right to detain the goods until his general demand had been paid him, without any mention of his particular claim at the time of his refusal to deliver them, he will be held thereby to have waived his lien for the particular charge upon them. It was scarcely necessary to add that the case before the Court did not come within the scope of this exception, because the defendants had not only failed to make any mention of, or allusion to their particular charge for the work done upon the article in question, at the time of their refusal to deliver it upon the demand of the plaintiffs, but it did not even appear that the particular charge referred to was embraced at that time in the general balance of account which they then had against the steamboat company.

And the Court considered this ruling not only in accordance with the principle to be extracted from the authorities cited, bat that it was in accordance with the reason and propriety of the principle itself. The owner of the goods had the general property in them, while the party having the possession for a particular purpose and such a specific lien upon them, had but a limited, or special property in them, that was to say, a right to retain the possession of them until the amount bf his particular debt had been paid, or tendered to him ; and as the extent of his lien was the measure of his right to detain, it would be his duty to apprise the owner at the time of the demand and refusal,of the existence of such a claim,although the later cases hold that he would not be considered in that.caso, as having waived his lien, if at the same time, he demanded more than he had a legal right to detain for, and that it would not dispense with the necessity of the payment, or tender by the owner, of the particular demand for which the lien rightfully attached to the goods. And 'f the original owner in such a case, was entitled to such notice, a fortiori, would a subsequent purchaser of the goods who succeeded to his rights, as in the present case, without any particular knowledge perhaps, of these pre existing demands against the company, be entitled to such notice.

The view of the ease just presented, would sufficiently dispose of the other points raised in the argument for the defendants, to render it unnecessary to refer more particularly to them. There was one distinction, however, taken by Mr. Bates, which claimed attention for a moment. It was that which he predicated upon the difference, more apparent than real, between the practical effect of a waiver of his lien by a defendant in such a case as this, and his waiver, or dispensing with the necessity of a tender by the plaintiff before the action was commenced. It was true that each of these phrases were to be met with in the cases decided on this subject, and some times under a change of circumstances which would seem to import a substantial difference between them both in principle and effect. But they were after all; but equivalent and convertible terms, and imported in point of fact, one and the same thing. Whenever the circumstances were such as to constitute a waiver of the lien by the defendant, they at the same time so operated as to dispense with the necessity of a tender by the plaintiff; and the converse of the proposition was equally true, that when the circumstances proved were such as to dispense with the necessity of a tender by the plaintiff, the lien of the defendant was waived. The one was but the consequence of the other, and they must appear, or disappear together.

As to the objection which had been taken to the replication on the score of duplicity, it would appear for the reasons already stated, that it did not apply in principle to the ruling in this case, and even if the court were of a different opinion in regard to the law of the case, the exception could not avail the defendants on a general demurrer; and this would dispose also of the further objection taken to the replication on the ground of the averment stated in the conclusion of it, that the defendants “ did not then and there name and specify the amount thereof,” meaning their particular demand for which they had a lien on the boiler. The court did not mean to say? or rule, however, that where there was a general balance without a lien, including a particular charge for which there was a lien, it would be necessary for the party to state or specify the exact or precise amount of the latter, to prevent a waiver of his lien on a demand and refusal to deliver the goods. All the court meant to say on that point was, that they considered it a principle fairly deducible from all the precedents in regard to it, that in such case there should be some special reference or allusion made by the party at the time of the demand and refusal to the particular charge in question, although accompanied with other and general charges, in order to show that he claimed to detain the goods for that debt by virtue of a valid specific lien upon them and upon a ground on which he had at the time, a legal right to detain them. The plaintiffs might therefore have alleged this matter in their replication, with more particularity and certainty than was actually necessary. The preceding part of the replication, however, contained all that was material and was sufficient without it, and which was admitted, of course, by the demurrer; it might therefore be rejected as mere surplusage under the familiar maxim in pleading of utile f er inutile not viiiatur. Had the facts of the case warranted the defendants in rejoining (instead of demurring generally to the replication) that at the time of the demand and refusal they did claim to detain the article in question for work and labor performed by them upon it, and for which they had not been3 paid, and the plaintiffs had alleged and objected in answer to this, that they did not name and specify the amount of such particular charge and a general demurrer had been entered to that, it would then have presented this allegation in a very material as well as in a different point of light from that in which it then stood upon the record. But upon the facts of the ease, this was not, and could not be done.

Judgment was therefore directed to be entered on the demurrer for the plaintiffs in the action.