had contracted to finish a machine employed a mechanic, without the knowledge of the owner, to perform the work, disclosing to him the contract with the owner, it was held that such mechanic did not acquire a lien in his own right for his labor upon the machine, as against the owner, although the owner knew that he was performing the work while it was in progress.107 A wheelwright repairing a carriage upon the order of the owner's servant, who has no authority to have such repairs made, has no lien, being put upon inquiry as to the servant's authority.108 And a sawyer who saws logs into lumber for a tenant who has cut the logs from the demised premises without the landlord's knowledge or consent has no lien as against the landlord.109 But where a wife allowed her husband to use her wagon, and he took it to a wheelwright for necessary repairs, and the wheelwright made the repairs, and charged them to the husband, supposing the wagon to be his, it was held that he had a lien therefor as against the wife, on the theory that the wife impliedly consented to the repairing.110 In an action to recover the possession of a number of coats, it appeared that plaintiff's employed one G. to finish the coats, and that G., without their knowledge, employed defendant to make the buttonholes of a greater number of coats, including those of plaintiffs. All the coats were delivered in one lot to defendant, who finished and returned to G. all except those of plaintiffs. On these facts it was held that defendant was not entitled to a lien on plaintiffs' coats for the labor bestowed on the coats returned to G., since there was no evidence to show that plaintiffs authorized G. to deliver the coats to defendant for the purpose of making the buttonholes.111

tract by which he was defrauded, and to reclaim the goods. Conrow v. Little, 22 N. E. 346, 115 N. Y. 387.

107 Hollingsworth v. Dow, 19 Pick. (Mass.) 228.

108 Hiscox v. Greenwood, 4 Esp. 174.

109 Hill v. Burgess, 15 S. E. 963, 37 S. C. 604.

110 White v. Smith, 44 N. J. Law, 105.

111 Gluckman v. Kleiman, 22 N. Y. Supp. 549, 3 Misc. Rep. 97.

(806)

DIVISION II. WAIVER AND LOSS OF THE LIEN.

Lien Lost by Loss of Possession.

§ 773. Since possession is essential to the lien, it necessarily follows that the lien of an artisan upon an article manufactured by him is lost by a voluntary abandonment of the possession of the property and its return to the owner.112 The surrender of possession may be made as well to the owner's agent as to the owner him self.113 So a tradesman who delivers the goods to a carrier to be forwarded to the owner at the latter's expense thereby loses his lien by losing his possession.114 A partial yielding up of possession is sufficient to destroy the lien. Thus, where a coach maker, who had repaired a coach, and kept it in his yard, allowed the owner to take the coach and use it from time to time, it was held that he had lost his lien for the repairs.115 After a lien has been lost by voluntary surrender of the property to the owner, such lien cannot, except in case of fraud, and perhaps mistake, be restored by resumption of possession.11 It has also been held that a mechanic who yields possession to the sheriff at the suit of a creditor of the owner, without asserting his lien, loses such lien.117

116

112 Sweet v. Pym, 1 East, 4; Hartley v. Hitchcock, 1 Starkie, 408; Baldwin v. Gibbon, Stuart, 72; Tucker v. Taylor, 53 Ind. 93; Nevan v. Roup, 8 Iowa, 207; Brackett v. Hayden, 15 Me. 347; Huckins v. Cushing, 36 Me. 423; Morse v. Railroad Co., 39 Me. 285; Danforth v. Pratt, 42 Me. 50; King v. Canal Co., 11 Cush. (Mass.) 231; Stickney v. Allen, 10 Gray (Mass.) 352; Smith v. Greenop, 26 N. W. 832, 60 Mich. 61; The Charlotte v. Hammond, 9 Mo. 61; Mochon v. Sullivan, 1 Mont. 470; McFarland v. Wheeler, 26 Wend. (N. Y.) 467; McDougall v. Crapon, 95 N. C. 292; Shrewsbury v. The Two Friends, Fed. Cas. No. 12,819, Bee, 433: Bailey v. Quint, 22 Vt. 474; Kitteridge v. Freeman, 48 Vt. 62; Smith v. Scott, 31 Wis. 420; Sensenbrenner v. Mathews, 3 N. W. 599, 48 Wis. 250.

113 Stickney v. Allen, 10 Gray (Mass.) 352.

114 Sweet v. Pym, 1 East, 4; Morse v. Railroad Co., 39 Me. 285.

115 Hartley v. Hitchcock, 1 Starkie, 408.

116 Sensenbrenner v. Mathews, 3 N. W. 599, 48 Wis. 250; Nevan v. Roup, 8 Iowa, 207; Hartley v. Hitchcock, 1 Starkie, 408.

117 Hurley v. Epps, 69 Ga. 611.

Exceptions and Qualifications.

§ 774. So far at least as third persons are concerned, a surrender of possession to the owner destroys the lien, even though it is stipulated between the parties that the lien shall continue.118 But, if the owner obtains possession by a tort,119 or without the lienor's consent,120 the lien is not affected. One having a lien on a lot of lumber does not lose it by allowing the owner to pile it up on the lienor's premises, since that is not a surrender of possession; 121 nor does a tailor lose his lien on a coat made by him by permitting his customer to try it on in his presence.122 And a wheelwright who has repaired a wagon, and has allowed the owner to take the box of the wagon from his shop to the street, and then refused to let him move the rest of the wagon, does not thereby waive his lien on any part of it; the presumption being that he allowed the owner to begin taking the wagon thinking that he came prepared and willing to pay in full for the repairs.123 It has been held in Maine that where one contracts with the proprietors of land to cut timber therefrom, and deliver it at a place appointed, to be sawed into boards, for an agreed price per thousand feet, to be paid at different times after the work should be completed, "said logs to be holden to said O. [the contractor] until all is paid, or satisfactory security given," this is rather in the nature of a mortgage than of a lien, and the claim of the contractor upon the logs will not be lost by his suffering them to go into possession of the proprietors of the land, subject to his right to resume it in case of nonpayment according to the contract. 124 One having a lien on grain which he has harvested and threshed on the owner's premises does not lose his lien as against

118 McFarland v. Wheeler, 26 Wend. (N. Y.) 467, reversing Wheeler v. McFarland, 10 Wend. (N. Y.) 318. A contrary rule was announced in De Witt v. Prescott, 16 N. W. 656, 51 Mich. 298, where the court followed Wheeler v. McFarland, supra, without knowing apparently that that case had been reversed.

119 Haughton v. Busch, 59 N. W. 621, 101 Mich. 267.

120 Partridge v. Trustees, 5 N. H. 286.

121 Holderman v. Manier, 3 N. E. 811, 104 Ind. 118.

124 Oakes v. Moore, 24 Me. 214.

122 Arguendo in Hughes v. Lenny, 5 Mees. & W. 187. 123 Milburn v. Milburn (Can.) 4 Q. B. 179.

one attaching the grain with notice, by having left it there in charge of a third person; 125 and delivery to a third person generally does not affect the lien if such third person retransfers the property to the lienor before the lien is sought to be enforced.126

Agreement to Surrender Possession.

§ 775. A binding agreement, either express or implied, to restore possession to the owner before payment waives the lien as effectually as an actual surrender of possession.127 Thus an agreement by a clothier to dress what flannel should be furnished him during the year, and to receive his pay quarterly, is a waiver of a lien on the cloth, since the legal effect of such an agreement is that the flannels should be delivered as fast as dressed.128 And a man who contracts to haul lumber at an agreed price, to be paid for when the lumber is sold, has no lien on it at common law.129 But it is essential that the agreement should be based on a legal consideration,130 and therefore a mere promise, without consideration, by one who has a lien on a chattel, that he will send the chattel to the owner, is not a waiver of his lien.131 It has been held in New York that a maltster who gives his receipt for barley to be malted, which he agrees to hold subject to the orders of the owner, does not thereby waive his lien.132

125 Hogue v. Sheriff, 1 Wash. T. 172. This case was decided under a statute which was declaratory of the common law, except that it provided a remedy for the enforcement of the lien.

126 Milburn v. Milburn (Can.) 4 Q. B. 179. In Nash v. Mosher, 19 Wend. (N. Y.) 431, it was held that such delivery did not destroy the lien, even though the property was not restored to the mechanic.

127 Stevens v. Faucet, 24 Ill. 483; Danforth v. Pratt, 42 Me. 50; Farrington v. Meek, 30 Mo. 578; Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441; Stillings v. Gibson, 63 N. H. 1; Wiles Laundry Co. v. Hahlo, 11 N. E. 500, 105 N. Y. 234; Lee v. Gould, 47 Pa. St. 398; Forth v. Simpson, 13 Q. B. Div. 680.

128 Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441.

129 Stillings v. Gibson, 63 N. H. 1.

130 Danforth v. Pratt, 42 Me. 50.

131 Clark v. Costello, 29 N. Y. S. 937, 79 Hun, 588.

182 Hazard v. Manning, 8 Hun, 613.

Giving Credit.

133

§ 776. If the mechanic has agreed to do work on a chattel on credit, he can have no lien on it therefor.1 This rule is said to be as old as the Year Books.134 It makes no difference whether the credit was provided for by antecedent agreement,135 or is merely evidenced by taking a note after the work is done.136 And an implied agreement for credit is as efficacious a waiver as an express one.137

Tender.

§ 777. An unconditional tender of the amount due the mechanic puts an end to his lien.13 And if the owner tenders him the amount due, upon condition that the property is delivered up to him, the tender cannot be called conditional, so as to be thereby vacated, on account of this proviso.139 Where a mechanic has agreed to take

133 Raitt v. Mitchell, 4 Camp. 146; Ex parte Cowan (Cal.) 41 Pac. 464; Tucker v. Taylor, 53 Ind. 93; Au Sable River Boom Co. v. Sanborn, 36 Mich. 358; Stoddard Woolen Manufactory v. Huntley, 8 N. H. 441; Wiles Laundry Co. v. Hahlo, 11 N. E. 500, 105 N. Y. 234; Murphy v. Lippe, 35 N. Y. Super. Ct. 542; Trust v. Pirsson, 1 Hilt. (N. Y.) 292; Fieldings v. Mills, 2 Bosw. (N. Y.) 489; Burdict v. Murray, 3 Vt. 302; Hutchins v. Olcutt, 4 Vt. 549. There are some decisions that seem to hold differently. Thus in New York it has been said that an agreement that the mechanic should not receive his pay until the vessel which was to carry the goods to market should return does not extinguish the lien so long as the goods actually remain in the mechanic's possession (Moore v. Hitchcock, 4 Wend. [N. Y.] 292), and that the lien is not lost by taking the owner's note, payable at a future day, where the mechanic retains possession, and the note is dishonored, and the maker becomes insolvent before demand for the chattel is made on the mechanic. Myers v. Uptegrove, 3 How. Prac. (N. S.) 316. And there is a decision in Indiana to the effect that taking the owner's note with surety is a waiver of the lien if taken in payment, but not otherwise. East v. Ferguson, 39 Ind. 169.

134 Trust v. Pirsson, 1 Hilt. (N. Y.) 299.

135 Fieldings v. Mills, 2 Bosw. (N. Y.) 489; Hutchins v. Olcutt, 4 Vt. 549. 136 Murphy v. Lippe, 35 N. Y. Super Ct. 542; Hutchins v. Olcutt, 4 Vt. 549. 137 Raitt v. Mitchell, 4 Camp. 146.

138 Moynahan v. Moore, 9 Mich. 9; Willis v. Sweet, 20 Nova Scotia, 449; Dempsey v. Carson, 11 U. C. C. P. 462.

139 Moynahan v. Moore, 9 Mich. 9.