106 Iowa 245 | Iowa | 1898
The produce company had no right to sell the property after it had been notified of the sale to Walker, unless such sale was necessary to the enforcement of its lien. And, as' both appellant and Scott stood ready to pay the charges, the sale to Cartegney was without authority, and amounted to a conversion of the goods. The factor’s lien was thereby extinguished, and plaintiff was entitled to recover. See Holbrook v. Wight, supra; Kilpatrick v. Dean (City Ct. N. Y.) 3 N. Y. Supp. 60; Id. (Com. Pl.) 4 N. Y. Supp. 708; Davis v. Bigler, 62 Pa. St. 242; Andrews v. Wade, supra. We have already discovered evidence tending to show that neither Scott nor appellant knew of the amount of the produce company’s claims for charges and commissions; that they offered to pay what was due; and that the refusal of the defendant to deliver was not due to the insufficiency of the tender, or to the medium of payment, but to the claim that the produce company had sold the goods to one of its employes. This tends to show not only a waiver of the lien, but a waiver of the statutory tender as well. See Auxier v. Taylor, 102 Iowa, 673, and cases cited. Judah v. Kemp, 2 Johns. Cas. 411; Jones on Liens, section 1019, and cases cited; Selby v. Hurd, 51 Mich. 1 (16 N. W. Rep. 180).
The evidence adduced tended to show that the sale to Cartegney was without authority and fraudulent, and we think the case should have gone to the jury on the question of waiver of lien, and as to the sufficiency of the tender made by appellant. — Reversed.