Chappell v. Cady

| Wis. | Dec 14, 1859

By the Court,

Paine, J.

The respondent in this case was a general agent for the buying and selling of real estate, paying taxes, interest, and negotiating such matters as might be intrusted to him. As such, he rendered services and advanced money in procuring certain shares of stock and interest scrip, to be exchanged for bonds of the La Crosse & Milwaukee Railroad Company, for one Martin Stuifer. The bonds were returned by the Company to the respondent; and while in his possession, Stuifer sold them to Chappell, who demanded them, and delivery being refused, brought this suit. The respondent claimed a lien for the money he had advanced in procuring them and the value of his services, and the only question in the case is whether he was entitled to such lien.

The general rule of the common law is well understood, that wherever a bailee has, by his labor, enhanced the value of property intrusted to him, he has a lien for his services. The rule, also, is equally well settled, that agents generally have a particular lien upon the property of their principals in their hands for the amount of their advances and services in respect to it, and this particular lien is favored in l&w. Story on Agency, ch. 14. Now, it seems to us that the lien claimed here comes within either the one or the other of these rules. For, if the property represented by the bonds is to be regarded as the same property previously represented by the stock certificates surrendered, then it may well be said that the services and advances of the respondent imparted an additional value to it. -For it was considered by the owner desirable to have the exchange effected. The company wished to retire the stock, and had offered to issue bonds in its place. And when the respondent, acting as an agent for such purposes, .hunted up the shares of stock, expending his time and money in doing so, and then at the expense of further labor and money had the stock surrendered and the bonds issued for it, it is evident that he improved the property to whatever ex tent the bonds were more desirable than the stock; and that they were so, to some extent, must be presumed, from the fact that the owner employed an agent to effect the exchange. But the counsel for the appellant urges that to establish the lien within this rule, the labor must be bestowed on the identical property, and that the bonds cannot be said to be the same property as the stock. Perhaps technically they were not, and yet substantially they were. Suppose an agent takes accounts for collection, and by negotiation obtains better securities, he has made the claim so much more valuable, and his right to a lien ought not to turn upon so nice a question, as whether the new securities are identically the same as the old. Such strict construction would be inconsistent with the favor with which the law regards such claims for lien. And, if it was necessary, we think it would not be going beyond the spirit of the rule upon this subject, to say that the property here was the same interest represented first by the stock and then by the bonds, and that the respondent’s services and advances gave it such additional value as it obtained from the change in the mqde of represention.

But, if this was not so, then the facts would make the respondent a factor. The shares of stock were then property of one kind, intrusted to him as an agent, to exchange or sell, for property of another, the bonds of the company. He made the exchange, and, in doing so, rendered services and ad-vancedimoney. The property received was in his possession, and his right to the particular lien upon it, given to all factors in such cases, would seem undoubted. It is in accordance with both the dictates of justice and the rules of law. Hollis vs. Claridge, 4 Taunt., 807.

We do not think that the testimony of Meyer, that when he demanded the bonds, the respondent said he knew nothing of them, or had not got them, brings the case within the rule that where a party on demand claims no lien, but sets up a claim entirely different, he cannot afterwards rely on a lien. Here the respondent set up no claim whatever, but denied knowing anything about them, if Meyer’s statement is true. But the respondent testified, and there is nothing to contradict it, that before the interview with Meyer, he had seen Chappell, told him he had the bonds, and was ready to deliver them on an order from Stuifer and the payment of his charges. It would not seem, after this, as though he could have seriously denied knowing anything about them. But the proper answer to this objection is, that there was no instruction asked upon the point. The charge of the court upon the general question of lien was correct. And although if the plaintiff insisted that the lien had been lost by the respondent’s denying knowledge of the bonds, a further instruction might have been properly given upon that subject; yet, none having been asked, and nothing done to call the attention of the court below to the point, the judgment could not be reversed, for the reason that it was not given. Lackner vs. Solomon & Conrad, decided at this term, 9 Wis., 129.

The judgment is affirmed with costs.

Dixon, C. J., took no part in the decision of this case, as the same was tried before him at the circuit.