Viley v. Lockwood

102 Tenn. 426

• Court: Tennessee Supreme Court
• Decided: May 3, 1899
• Status: Published

Opinion

Beard, J.

This is an action of replevin for a blooded mare, brought by its owner. The defendant is a livery stable keeper, and resisted recovery on the ground that he had an unsatisfied lien for the keeping of the mare.

It is unimportant that the defendant had a lien on the animal if, under the facts of the case, he had waived it at the time of the demand by the owner for its return. The facts relied on by complainant to show a waiver are that defendant had been notified by 'Mr. Richardson, at whose residence the mare had been left in the stable of defendant, that he had a trainer’s lien on her, and that she mast not be delivered to the owner until his claim was paid. The complainant denied there was any such lien, and insisted that Richardson had been wrongfully in possession of the animal, and in this he is fully sustained by the record. He therefore declined to pay the Richardson claim, and demanded a -delivery of the mare to him upon the payment of defendant’s claim for keeping her. To this demand the defendant replied that he would not surrender her until, in. addition to his own bill, the Richardson bill was paid, or a written contract was produced by complainant, showing that Richardson had no claim. Thereupon this suit was brought.

The demand made by Lockwood was unwarranted in law, and amounted to a waiver of his livery stable lien; it was the assertion of a claim adverse to the rights of the owner, and independent of, and inconsistent with, the lien for the keep of the horse. Hamilton v. McLaughlin, 145 Mass., 20; Rogers v. Weir, 34 N. H., 463; Holbrook v. Wight, 24 Wend., 169.

Affirmed.