Sheller v. Livingston

RICHARDS, J.

This is an action for claim and delivery brought to recover the possession of a certain gas engine with appurtenances.

The property belonged to the plaintiff and one de Bretteville, as partners, doing business under the name and style

of

the American Sand Blast Company.

[573]

In an action for the dissolution of that copartnership, the property in question was awarded to the plaintiff herein by the court.

Prior thereto it had been delivered by de Bretteville to the defendants in this action, for storage at an agreed price of five dollars a month.

Defendants had sold and also rented certain goods to de Bretteville.

Subsequent to the award of the property to plaintiff in the action for the dissolution of the copartnership, and before the commencement of this action, a demand was made by plaintiff herein upon the defendants for its possession.

At the time the demand was made, one of the defendants asserted a claim of lien .in the property for the storage charges and also for the goods sold and rented to de Bretteville.

Plaintiff offered to pay the amount of the storage charges, but refused to pay the amount claimed to be due for the goods so sold and rented.

Defendants refused to deliver up the machinery under this offer, whereupon plaintiff sued defendants in claim and delivery, and the defendants in their answer and by way of counterclaim and cross-complaint set up a lien for the storage and for the goods sold and rented to de Bretteville.

The court below found against the defendants on all the issues tendered by them except their claim of lien for storage and found in favor of the plaintiff on all of said issues, but found for the defendants on the issue of tender made by the plaintiff to the defendants of the amount of the storage charges.

Judgment was thereupon given for the defendants—plaintiff’s motion for a new trial was denied and this appeal is taken from that order.