16 Mo. App. 450 | Mo. Ct. App. | 1885
delivered the opinion of court.
On the trial of this cause, the court instructed the jury to find a verdict for the plaintiff, which they did, and judgment was rendered accordingly.
It is an action of claim and delivery under the statute, and the general property in the articles' sued for was admitted to be in the plaintiff. Unless we find, that the defendant has offered legal evidence of a right to the possession of the property at the date of the institution of the suit, the judgment of the trial court must stand.
The defendant’s claim of such right of possession was threefold. It claimed to have a lien on the property by special contract, it claimed an artisan’s lien by the common law, and it claimed the right of possession under a continuing contract for the performance of which it had been intrusted with the possession of the property by plaintiff.
The action of the trial court relieves us from considering-any other question, except the one whether defendant has offered legal testimony to substantiate any of its three claims, as the weight of the testimony under the rule established in this state was a question exclusively for the jury, in the first instance.
It appeared in evidence that defendant had agreed by written contract, for a compensation specified in detail, to print for plaintiff a periodical known as the Western Travelers' Guide. The plaintiff was to furnish, all outside page
There was no lien on the material reserved in the written contract. Testimony was offered, however, of an oral contract, between the plaintiff and the defendant, to the effect that the defendant should have a lien on the material for its work. This evidence was competent, and was not even objected to. Laudman v. Ingram, 49 Mo. 214; Van Studdiford v. Hazlet, 56 Mo. 324; Life Association v. Cravens, 60 Mo. 390. There was evidence tending to show that this right of lien was reserved by defendant both before and after the execution of the written agreement, and even at the time when the guaranty therein provided for had been given. That a lien thus reserved expressly, was not impliedly waived by the giving of credit or security, and that the court could not as a matter of law declare that it was so waived, necessarily follows from the elementary proposition, that the proof of certain facts, negatives presumptions diametrically opposed to the facts proved. In Hewison v. Guthrie (2 Bing. (N. C.) 759), and Hutchins v. Olcutt (4 Vt. 549), relied on by plaintiff in this case, no facts were shown to negative the implied waiver. It is alwavs competent to show by other facts that no waiver of this lien was intended. Pratt v. Raton, 65 Mo. 165.
There was evidence which tended to show that defendant' had a lien both by agreement and at common law (Over-
There was also some evidence tending to show that plaintiff had been guilty of a breach of the contract, and some evidence which plaintiff claims conclusively establishes the fact that defendant was guilty of a subsequent breach of the contract by refusing him permission to electrotype standing matter at his own expense. But the breach, even if conceded, was not of a character to entitle the plaintiff to rescind the contract as a matter of law ( Selby v. Hutchison, 9 Ill. 332) ; nor to retake the property by legal process, freed from defendant’s lien, as a matter of law.
Under the equitable rule established in Dilworth v. McKelvy, in this state, all that the general owner has to do to retake his property from any one claiming a lien thereon, is to tender the amount justly due to the lienee. There was evidence in this case that the defendant had a lien on the property at the time when it was taken by the writ sued out by plaintiff, there is no evidence that any amount was ever tendered.