141 $20 in cash and a cognovit for $70 in payment for his work, his lien is lost on payment of $20 and tender of the cognovit.140 But where the work was done under a contract for cash payment, an offer to indorse the amount of the bill on an acceptance of the mechanic is not such a tender as will terminate his lien.1 The fact that the lien upon a chattel has been discharged by a tender does not give the owner the right to break into the mechanic's shop to recover it.142 In case of tender made to one holding property on which he claims a mechanic's lien, any objection made at the time of the tender on the part of the claimant precludes him from afterwards availing himself of any other objection, however valid; and, if this objection is not well founded, the tender is good.143 Where a mechanic detains goods for different claims, as to one of which he has a lien and as to the other not, the owner must nevertheless tender the amount due for the valid lien in order to recover the goods.1 Confusion of Accounts. 144 § 778. If an artisan so mixes his accounts that his claim for repairing certain property cannot be distinguished from claims for other work against the same person, he loses his common-law lien on the property.145 But a workman who, having a lien, claims more than is due him does not necessarily waive the lien or waive a tender of the amount properly due.146 Claiming a lien for a general balance is not a waiver of the particular lien for work done upon the chattel itself,147 provided the mechanic also assert the particular lien, when return of the chattel is demanded.148 In an English case 140 Dempsey v. Carson, 11 U. C. C. P. 462. 144 Kendal v. Fitzgerald, 21 U. C. Q. B. 585. 145 Kirtley v. Morris, 43 Mo. App. 144; McMaster v. Merrick, 2 N. W. 895, 41 Mich. 505. 146 Comstock v. McCracken, 18 N. W. 583, 53 Mich. 123; Kirtley v. Morris, 43 Mo. App. 144; McBride v. Bailey, 6 U. C. C. P. 523; Kendal v. Fitzgerald, 21 U. C. Q. B. 585. 147 Scarfe v. Morgan, 4 Mees. & W. 270. 148 Thatcher v. Harlan, 2 Houst. (Del.) 178. It has been, however, held in Missouri that the fact that an artisan, when demand is made for property ་ a lien was asserted upon a carriage for repairs, some of which had been ordered and some not, and it was held that setting up an undivided lien for both kinds of work did not destroy the lien for the repairs actually ordered.149 Inconsistent Claim. § 779. If an artisan, having repaired property, claims to be the absolute owner of it, or does other acts inconsistent with his claim of a lien, he waives the lien, and, having been once lost, it cannot be revived.150 And a lien upon a chattel is waived if the parties enter subsequently into any special agreement inconsistent with the existence of the lien.151 Thus a bailee of chattels, who, while he has a lien on them, buys them from the general owner, by a contract valid between the parties, but void as against the seller's creditors, cannot, after they have been taken possession of by the messenger of the court of insolvency in proceedings against the seller, set up his lien in a suit against the messenger, if at the time of their being taken he claimed them only as purchaser, and gave the messenger no notice of his lien, and made no demand for the amount of his lien. 152 So, too, where a blacksmith ironed a sled, and asserted his lien thereon for his pay, whereupon it was agreed that the sled should be his property till he was paid, and the former owner took and kept possession of the sled always recognizing the blacksmith's title, it was held that he lost his lien by virtue of the contract, and by voluntarily parting with the possession of the sled, and that the sale was not good as against attaching creditors of the former owner.15 But where an artisan, who has a lien on a chattel, and who has bought it from the owner by a sale that is invalid because made after the latter's bankruptcy, refuses to deliver it to the assignee in bankruptcy, saying that he might as well give up every transaction of his life, such language being as applicable to his lien as to his purchase, which he has repaired, does not disclose that he claims a lien thereon, is not a waiver of his lien. Kirtley v. Morris, 43 Mo. App. 144. 149 Green v. Shewell, cited in 4 Mees. & W. 277. 150 Kirtley v. Morris, 43 Mo. App. 144. 151 Pickett v. Bullock, 52 N. H. 354. 152 Mexal v. Dearborn, 12 Gray (Mass.) 336. 153 Kitteridge v. Freeman, 48 Vt. 62. has been held not to waive the lien.15. An artisan who has asserted, even ineffectually, a statutory lien on chattels, waives his commonlaw lien thereon.155 And the reservation of a contract lien, inconsistent in its provisions with a statutory lien, waives the latter.156 A refusal by a mechanic to deliver chattels on the ground that they belong to a third person is a waiver of his lien thereon.157 So, too, claiming the right to hold the chattels for another debt, without mentioning his lien, waives it.158 Attachment and Execution. § 780. Whether an artisan who causes property on which he has a lien to be seized on attachment or execution in a suit to enforce the lien debt thereby waives or relinquishes his lien is an unsettled question.159 It has been held in England that one having a lien on chattels loses it by having them levied on under an execution upon the lien debt.160 In Canada, on the other hand, it has been held that an artisan's having a lien on a chattel would not prevent his seizing it under an execution for the debt which constituted the lien, nor would his asserting such a right be inconsistent with his lien, or a waiver of it.11 In Massachusetts it has been held in one case that an artisan's lien is not discharged by his causing the chattels to be attached and receipting for them to the officer making the levy if it appears that it was the artisan's intention to retain his lien; 162 while another case in the same state holds generally that an attachment of the goods by the artisan waives his lien.163 In Maine it is held that one having a lien on lumber for labor in cutting and hauling it will not be considered as having abandoned or waived his claim, although he caused 154 White v. Gainer, 2 Bing. 23. 155 Vane v. Newcombe, 10 Sup. Ct. 60, 132 U. S. 220. 156 Howe v. Patterson, 3 Atl. 650, 78 Me. 227. 157 Andrews v. Wade (Pa. Sup.) 6 Atl. 48. 158 Thatcher v. Harlan, 2 Houst. (Del.) 178. 159 Lloyd v. Holly, 8 Conn. 490. 160 Jacobs v. Latour, 5 Bing. 130. 161 Lake v. Biggar, 11 U. C. C. P. 170. 162 Townsend v. Newell, 14 Pick. (Mass.) 332. 168 Legg v. Willard, 17 Pick. (Mass.) 140. The opinion in this case contains no reference to Townsend v. Newell, supra. his demand to be sued, and the lumber attached, if he retained possession of it, insisted on his lien, and no judgment had been rendered in the suit.104 Conversion. § 781. Since the lien of a mechanic on a chattel is merely a right of possession, giving no title, a conversion of the property by him destroys his lien. Thus an unauthorized sale of the chattel puts an end to the lien.165 And attempting to sell it,166 or sending it to a factor for sale,167 is equally a waiver of the lien. An assignee of the lien, even where such liens are held assignable, loses his rights if he sells the property.16 And pawning the chattel destroys the lien as effectually as selling it.169 Under a statute giving mechanics the right to sell property at auction to enforce their liens, it has been held that a sale not at auction does not amount to a conversion, but simply operates as an assignment of the lien to the purchaser.170 Breach of Contract. § 782. A mechanic who has contracted to do certain work upon chattels, and who breaks his contract, performing but part of the work, has no lien, since the lien is based upon due performance of the work.171 But if a mechanic agrees to do certain work on a chattel for a fixed price, and is prevented from completing the work by the fault of the owner, he has a right of lien for the value of the work actually done as well as for any expense incurred by him in doing 164 Palmer v. Tucker, 45 Me. 316. 165 Coit v. Waples, 1 Minn. 134 (Gil. 110); Rodgers v. Grothe, 58 Pa. St. 414; Davis v. Bigler, 62 Pa. St. 242; Terrell v. The B. F. Woolsey, 4 Fed. 558; Nash v. Mosher, 19 Wend. (N. Y.) 431. But it has been held in Tennessee that the lien is not lost by an irregular attempt to enforce it by a sale. Shields v. Dodge, 14 Lea (Tenn.) 356. 166 Vincent v. Conklin, 1 E. D. Smith (N. Y.) 203. 167 Bean v. Bolton, 3 Phila. (Pa.) 87. 168 Nash v. Mosher, 19 Wend. (N. Y.) 431. 169 Gallaher v. Cohen, 1 Browne (Pa.) 43. 170 Rodgers v. Grothe, 58 Pa. St. 414. 171 Hodgdon v. Waldron, 9 N. H. 66; Haughton v. Busch, 59 N. W. 621, 101 Mich. 267; Hilger v. Edwards, 5 Nev. 84. the same. 172 In a New York case the facts were that A. contracted with B. to manufacture boards for him, and to transport them to market for a stipulated price, and by the contract A. was to have a lien upon the boards which should be delivered by him, after the delivery of a specified quantity. The whole quantity of boards made was not sufficient to enable A. to deliver the specified quantity and satisfy his en, owing to B.'s neglect to supply him with sufficient logs to manufacture the boards. On these facts it was held that the common-law lien attached to the last quantity manufactured, notwithstanding the special agreement, since the special agreement, having been broken by the owner, was of no further effect.1 173 Other Methods of Waiver. § 783. It is said that the law favors possessory liens for work, and that, in order to waive such a lien, there ought to be a special agreement or unequivocal acts.174 Such liens are not lost by the death of the owner.175 And a lien in favor of a firm is not lost by the dissolution of the firm.176 A set-off cannot be considered as destroying a lien unless it be so agreed upon between the parties.177 The fact of an artificer having waived his lien in a series of transactions is not evidence of a waiver in another transaction.178 Where a defendant in replevin files an answer denying generally the allegations of the petition in which the plaintiff claims ownership and right of immediate possession, a judgment for the plaintiff is conclusive against defendant's claim to an artificer's lien, since the establishment of such lien by the evidence would have entitled the defendant to judg ment. 179 And the refusal of a mechanic to deliver property to the owner without stating that he holds it for a lien is a waiver of the lien.180 A mechanic who has agreed to repair and alter stereotype 172 Lilley v. Barnsley, 1 Car. & K. 344. 173 Mount v. Williams, 11 Wend. (N. Y.) 77. 174 Faulkner v. Harding, 9 Mo. App. 12. 175 East v. Ferguson, 59 Ind. 169. 176 Busfield v. Wheeler, 14 Allen (Mass.) 139. |