Miller v. Crabbe

66 Mo. App. 660 | Mo. Ct. App. | 1896

Gill, J.

This is an action to recover possession of a horse. Plaintiff, as the keeper of a livery and feed stable, asserts the right to enforce a lien under the statute (sec. 6730, Revised Statutes, 1889) for the care and feeding of the horse, while kept in his barn by the order of one Adams, the owner. Defendant bases his claim on a prior chattel mortgage executed by Adams. The point in the case is, who has the superior lien1? The circuit court decided in favor of plaintiff, the liveryman, and the defendant mortgagee appealed.

It may now be considered the settled rule in this state that the rights of a prior mortgagee will take precedence over the subsequently acquired lien of the livery stable keeper, or agister, unless the lien of the latter was created by the consent of the mortgagee. Stone v. Kelly, 59 Mo. App. 214, and authorities cited; Lazarus v. Moran, 64 Mo. App. 239.

This assent of the mortgagee may be implied by the circumstances of the case. In the well considered case of Hawes v. Newcomb, 146 Mass. 76, it is said: “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 the mortgagee, not only on the terms of the express contract in relation to them, but also upon all the circumstances surrounding the transaction, indicating the expectation of the mortgagee as to the management of them by the mortgagor. If from these, the-mortgagee may be presumed to have understood that the mortgagor would take them to a stable keeper to be boarded, and no objection was made, such consent should be implied, otherwise it should not. * * * The real question is, whether he (the mortgagee) has reason to believe, and does believe, that they (the horses) are to be boarded at a livery stable, or kept by any one else than the mortgagor.” See, also, Pingrey Chat. Mortg., sec. 730, and authorities before cited. Also Pickett v. McCord, 62 Mo. App. 467.

The facts of the case in hand clearly establish the authority of the mortgagor to create the lien. The evidence shows that about the time the mortgage was executed, the owner, Adams, took the animal to plaintiff’s stable and left Mm there to be fed and cared for; that the.defendant mortgagee knew of it and' tacitly assented to the arrangement; that he went to the stable and inquired as to the cost of the keeping and made no objection thereto. The testimony satisfactorily shows that it was within the understanding and intention of the parties at the time that the mortgagor would hire the horse’s board from other parties, and that he would not in person keep and feed the animal.

Under this state of facts, and in the light of law before mentioned, the judgment was manifestly for the right party and will be affirmed.

All concur.