Sutton v. Stephan

Seakls, C.— This is an action in claim and delivery. Defendant justified his right to retain possession of the property demanded (a horse, buggy, harness, etc.) as the keeper of a livery and feed stable, with whom the property had been left by plaintiff to be fed and cared-for, and claimed as due him on account of such feed and care the sum of three hundred and fifty-nine dollars and seventy-five cents, for which sum he claimed a lien upon the property in his possession.

The cause was tried by the court, and written findings filed in favor of defendant, upon which judgment was entered for costs of suit.

The appeal is from the final judgment, and the cause comes up on the judgment-roll, without any statement or bill of exceptions.

The record as presented contains a motion to strike out portions of defendant’s answer, and what purports to be an order of the court denying such motion.

These proceedings constitute no part of the judgment-roll, and not being embodied in any statement or bill of exceptions cannot be considered.

The only question in the case which we can consider arises upon the findings of the court to the effect that on the twenty-second day of November, 1892, plaintiff demanded possession of the horse and buggy; that defendant refused to deliver them; that thereupon plaintiff demanded of defendant a full and itemized account of all claims and charges for which the said defendant [548]claimed to hold said goods and chattels, and to state the amount of his lien, and that defendant neglected and refused to render any account to plaintiff, or state the amount of his lien, or to surrender the property to plaintiff.

The contention of appellant is that these refusals on the part of the defendant entitled him to recover possession of the property.

There are various methods by which equitable and statutory liens may be waived. Thus, where one having a lien does not disclose it when the owner demands the property, but claims to be himself the owner, he is estopped from setting up a lien in defense of an action to recover possession by the owner. (Maynard v. Anderson, 54 N. Y. 641.)

Retention upon any ground inconsistent with a lien usually amounts to a waiver. (Jones on Liens, sec. 1019.) Other cases might be specified in which the lien would be lost. But in the present instance, it would seem to have been the duty of plaintiff to have redeemed from the lien in accordance with the provisions of section 2905 of the Civil Code, or he might have brought an action to redeem from the lien. ,