146 Mass. 76 | Mass. | 1888
The horses sought to be replevied are claimed by the plaintiff under a mortgage of unquestioned validity, and by the defendant under an alleged lien for their board, founded on the Pub. Sts. c. 192, § 32. This section provides that “ persons having proper charges due them for pasturing, boarding, or keeping horses or other domestic animals brought to their premises
The only exception taken was to the refusal to rule as requested, that the defendant “had a lien upon the horses for their keeping, as against the plaintiff’s mortgage, both for the time intervening between the first interview, on October 12, 1886, and the date of the plaintiff’s writ, November 6, 1886, and also for the whole time he kept them for said Thompson ”; and the question is, whether the case shows such facts that the judge ought to have made this ruling as a matter of law.
The bill of exceptions does not purport to be a full report of the evidence or facts of the case. It does not even state that it presents all the facts or evidence bearing upon the legal question raised. If we assume, what in a case of this kind, in the absence of an express statement, should not ordinarily be assumed in favor of an excepting party, that we have all the facts touching the existence of the lien claimed, can there be no proper interpretation of them other than as creating a lien ? The defendant was bound to prove that the horses were brought to his premises or put in his care by or with the consent of the owner. This fact is not found. Are the others which appear in the exceptions equivalent to it in law ? Is it impossible properly to draw inferences from the others inconsistent with the existence of this ?
The mortgagor was not the owner within the meaning of this statute, but the plaintiff was. It is not contended that the plaintiff expressly agreed to the horses being placed in the defendant’s care. But undoubtedly an implied consent will answer the requirements of'the law, and in every case of this kind the inquiry is- whether such implied consent is proved. That depends, where animals are left with a mortgagor by a mortgagee, not only upon the terms of the express contract in relation to them, but also upon
It is doubtless true that, outside of the largest cities, a very small part of the horses or cattle in Massachusetts are boarded out by their owners. Keeping them in the personal care of the owner or of his servants, upon his own premises, or in barns where he hires privileges and furnishes his own fodder, is the rule. And one acquiring an interest in horses used in a common kind of business in the interior of the St'ate, and leaving them with their owner, would naturally suppose, in the absence of any agreement to the contrary, that they were to be kept by him, and not taken elsewhere to be boarded. If, on the other hand, he should know at the time of taking a mortgage that the mortgagor kept his horses at a boarding stable, or that he was engaged in a business in which men generally hire their horses boarded, and he should leave them with him without directions, he would be held to consent to their being so kept.
The question before us differs from that raised in Hammond v. Danielson, 126 Mass. 294. In that case the mortgage was upon a hack, which the mortgagee left in the possession of the mortgagor to be used in his business, and the question was whether
The case at bar is like Storms v. Smith, 137 Mass. 201. In that case, as in this, the effort was to establish a lien for keeping property, and the question was whether the mortgagee impliedly consented to the storage of it for pay by one to whom the mortgagor delivered it. In that case, as in this, the mortgagor might keep it in his personal charge in a building which he owned, or procured for that purpose, or he might put it into the custody of another. It was decided that the mortgagee could not be presumed to have consented to its being left by the mortgagor for storage with one who was to keep it for pay and claim a lien upon it. It is said in the opinion, “The mortgagee had given no authority other than what was to be implied from his allowing the mortgagor to remain in possession of the mortgaged goods, coupled with the fact that it was necessary that the goods should be stored somewhere to prevent their destruction. If these circumstances were enough to support the defendant’s claim, every mortgagor in possession of perishable goods would have power to create a paramount lien upon them.” And, referring to the record of the mortgage, it is said of the claimant, “ If storage was necessary, he was chargeable with notice that the plaintiff had a right to judge for himself where it should be, if his interest was to be charged with the cost.”
A charge for keeping goods is the same in kind as a charge for keeping living animals. Each is for the use of the place
In the ease at bar, no fact appears bearing upon the question of implied consent of the plaintiff to the mortgagor’s hiring the horses boarded, except his taking a mortgage to secure payment of a note of three hundred and twenty-five dollars upon the horses and other articles used in the business of the mortgagor as a buyer and seller of meats, fish, and vegetables, and his leaving the property in the mortgagor’s possession. It did not appear that “when the mortgage was made, .... or afterwards prior to Thompson’s disappearance, he knew where the horses were kept.” And knowledge that they were kept in the defendant’s barn would not, upon the facts stated, have shown that he was boarding or keeping them, within the meaning of the law. The defendant does not appear to have been engaged in the business of boarding horses. He “ was in the employ of Thompson in the market as a salesman, also peddling fish, and keeping books during the whole time.” The horses were kept at his “barn, about one and a half miles from the market,” and he “ furnished the grain and hay eaten ” by them. “ Thompson absconded on or about October 12, 1886,” and “before he left he put all the property described in the writ into the custody and care of the defendant.” We have assumed that the defendant had the horses in his “custody and care” as a keeper for hire before that date, and that he did not merely sell Thompson hay and grain and let him room in the barn. But if this was so,there is nothing to show that it was apparent at the time, and it is not clearly stated in the bill of exceptions. The provision in the power of sale authorizing the mortgagee to discharge from the proceeds “ any claim or lien of a third person affecting the property” before rendering the surplus to the mortgagor, has little significance as affecting this particular claim of lien; first, because it was a general clause inserted in the mortgage to cover any state of facts that might arise; and secondly, because in this mortgage a great variety of property was conveyed, and, among
Putting upon all the facts the interpretation most favorable to the defendant, we cannot say that Thompson had the implied consent of the plaintiff to subject the horses to a lien, or that the judge should have ruled, as matter of law, that the defence was made out. If this were to be held a valid lien, it would seem to follow that every one taking a mortgage upon horses used in a business like that of a provision dealer, and leaving them with the mortgagor, must be deemed impliedly to consent to an arrangement for the destruction of his security. Such a result would be inconsistent with the liberal policy of our law in relation to mortgages of personal property.
jExceptions overruled.