De Vinne v. Rianhard

9 Daly 406 | New York Court of Common Pleas | 1880

Charles P. Daly, Chief Justice.

The plaintiffs, in my opinion, had no lien upon the type. It was held in Bleaden v. Hancock (Mood. & M. 465), that a printer has no lien upon stereotype plates which are left with him to print from; and I can see no distinction, so far as respects the right of lien, between type, as such, and stereotype plates. Cross, a careful and very reliable elementary writer on the law of lien says, • as the result of the cases when his book was written, forty years ago, that “ the courts have recognized and allowed without restriction, the right of .every bailee to a lien on the goods bailed to him, where any additional value has been conferred by him on the chattel, either directly by the exercise of ¡personal labor and skill or indirectly by the intermediate use of any instrument over which he has controland that the right, when it does not exist from usage, or is not obtained^ by contract, depends upon whether any additional value has been conferred by the bailee on the chattel, may be illustrated by the decision in Jackson v. Cummins (5 Mees. & W. 342), that an agister, or one who takes charge of horses or cattlc^has no" lien for their keep, because he does not confer any additional value on the animal but merely takes charge of it and feeds it; and the decision in Scarfe v. Morgan (4 Mees. & W. 270), that one who receives a mare to be covered by a stallion has a lien, as the mare may be made more valuable, by proving in foal; in the first of which cases, Baron Pabk declares the rule to be as fol-\ lows: The general rule is, in the absence of any special agree-1 ment^that,. vvlienever a party has expended labor «and skilljji_| the improvement of a chattel bailed to him, he has a lien upon ' it., This rule has been questioned in Steinman v. Wilkins (7 Watts & S. 466); but has been adhered to in this and other states (Grinnell v. Cook, 3 Hill, 491; Morgan v. Congdon, 4 N. Y. 553; Pinney v. Wells, 10 Conn. 105; Cummings v. Harris, 3 Vt. 244); and if it is to be departed from, it must be left to the court of appeals to do so. It is not for this court to overturn or disregard a long line of authorities. The respondent-relies...upon the rule as it is laid down by Senator Verplank in McFarland v. Wheeler (26 Wend. 467)T"crThat everyAma.U-.who has lawful possession of anything upon which he has expended .his money, labor or skill, at the request-of thp owner, has a righhlo-detain it as security for„his-dgbt.” This is a loose statement of the rule, which is more correctly laid down by Jewett, J., in Morgan v. Congdon (4 N. Y. 553), as follows: that “Every,bailee for hire,jwho^ by his labor and skill has imparted cm additional vajue to the_ goojk,_has ajien, upon the property for the payment of his.reasonable bharges,” which is the rule that must be_applied in this case..

The type from which the.plaintiffs printed the “ Register,” from time to time, for the McKillop & Sprague Company, was furnished by the company, and belonged to them. It cannot be assumed that tlñTvalue of it, as type, was enhanced by the plaintiffs’Hh'intihg froiiri'tr'''C)ñffhWcbhtraivrYthere ishmy inference, it is that the constant use and printing from the type would diminish its value. The plaintiffs had a lien upon the book pnntedjfrom the type, for that was a thing producecTby their labor and skill; but I fail to see how, under the rule established by the authorities cited, they could acquire, except by contract, any lien upon the type, which was purchased by the McKillop & SpragñYüompany, and left with the -plaintiffs tqjpnnYfinm.^,

There is nothing in the evidence to warrant a finding that it was provided by contract between the plaintiffs and the McKillop & Sprague Company that the plaintiffs were to have the right to detain the type until they were paid for their labors and services in printing the “ Register.” The McKillop & Sprague Company were a corporation, and all there is on that subject, is the testimony of one of the plaintiffs, De Vinne, that he told Sprague, a member of the corporation, that the proposition which Sprague offered was declined because it would be weakening the plaintiffs’ security; that, under the arrangement then existing, they held the notes of the company and Mr. Tapper, and held the printing type of the company in their possession, and that if they took Tapper’s notes, they released the company and their claim on the types; and that Sprague, in reply, simply asked De Vinne if .he had considered the matter fairly, and that De Vinne replied that he had, and that then the conversation dropped. This was a statement to one of the members of the corporation, by one of the plaintiffs, that, by the arrangement then existing, the plaintiffs held the printing types in their possession for their security; but that did not establish that a contract to that effect existed;--It may have been that De Vinne assumed that by the law, he had a lien upon the type, which he would release if he took the promissory notes offered, which would be giving credit, as there is no lien, as a general rule, where credit is given (Trust v. Pirrson, 1 Hilt. 397, 298); but whether he did or not, De Vinne’s claiming that the plaintiffs had a right to hold the type as security, in a conversation with one member of the corporation, would not, because that member did, not controvert or dispute it, amount to an acquiescence or admission on the part of 'the corporation, that a contract existed between it and "the plaintiffs to~~thaf ~~ eBecf^rPolldcITon Contracts, 474; Angel & Ames on Corporations, § 309, 8th cd.). p ' '>

The respondent claims that, as the corporation, after that statement by De Yinne to Sprague, allowed the plaintiffs to go on with the work, under the assumption that they had a lien on the type, the corporation was estoppecTfrom afterwards setting -np.ihajLthere was no liexi. WithoufFoncecfing that the doctrine of estoppel would apply in any case to such a state of facts, it is sufficient to say, that a corporation-ismewer-fistopped to deny what it had no legal power to do (Hood v. New York, &c. P. P. Co., 22 Conn. 1502; Pennsylvania, &c. Steam Nav. Co. v. Dandridge, 8 Grill & J. 248).

The McKillop & Sprague Company, of which the defendant Rianhard is the receiver, was organized under the act of 1848 for the incorporating of manufacturing companies, &o., and the acts amendatory thereof; and bj^_section_2 of that act, was forb.idd(m-.j^^ixe_£my..Jien_upon _its_real or personFlYstate^ or to give__any:. mortgage^ for the payment of any__debt, contracted by it in the business jor _wffi<ffi_itjw^incpiqipr.ated, unless by the written assentof ^ockholders owning, at leastifcwothirds of the capital stock of the corporation, and_by filing the consent in jthe office of the clerk of tire county where the property mortgaged by it was situated (2 Fay’s Digest Laws of N. Y. 451, 452; 1 L. 1871, p. 1009, § 2). The mere silence, therefore, of Sprague in the interview in which Dé Yinne claimed that an arrangement existed to hold the typqas" security, and the_fact that the employment of plaintiffs was continued thereafter b.y the_c.omp.any, could in jno way estop the cmppratiouj5r_its_receiveivfronpjlenyingjthat the corporation had' given any lien to the defendants, upon the type. There is another questionTas to the assunrptioiijff _thepxistenge of a lien where* credit was constantly given by the plaintiffs to the "companyfor“thApiymerit o"f" the work done, which, however, I do not purpose to go into; the conclusion being sutffcientTRmKtKeréNúJñodien upon the type, by the common law ; and tlfat there was~no contract- betweenlfhelplaintiffs and the corporation, to give one to the plaintiffs....

1 think, therefore, that the judgment upon the report of the referee will have to be reversed.

Larremore and Van Hoesen, JJ., concurred.

Judgment reversed.