247 N.W. 723 | Mich. | 1933
Charles V. Othoudt and E. Pearl Othoudt invested $4,000 in two pairs of silver black foxes, claimed to be of a particularly fine strain. It was expected that there would be a large profit made from their increase. Plaintiffs ranched the foxes at one of the fox farms of defendant Addison Fur Corporation. Two contracts were entered into, one referring to the increase from the foxes, and the other, dated October 1, 1927, referring to a ranching fee of $150 per year for each pair of foxes. The latter contract contained the following provisions:
"Neither said foxes nor the benefits accruing to second party under any pooling agreement shall be removed from said ranch until said ranching fees shall have been fully paid and satisfied and if said second party neglects or refuses to pay said ranching fees within 15 days after the same or any part thereof shall have become due, then in addition to its other remedies, said first party may offer said foxes and/or said benefits for sale (at either private or public sale) and may dispose of the same for the best price that may be secured, and deduct from the money so received the amount of such ranching fees and pay the remainder over to the second party or it may put such remainder to the account of said second party in any bank in the village of Evart or city of Jackson, Michigan.
"Said ranching fees shall not abate nor be diminished by virtue of the death and/or escape of said foxes and/or their offspring inasmuch as this contract is a part of and subject to the standard pooling agreement. * * *
"It is further agreed that this agreement shall expire on October 5, 1928, unless prior to October 1, *484 1928, a further written agreement for ranching after said expiration date is entered into."
Plaintiffs paid the ranching fee for the year ending October 1, 1928. In a letter dated November 13, 1928, urging plaintiffs to trade their foxes for shares of stock in National American Furs, Inc., defendant stated:
"RANCHING FEES DUE UP TO OCTOBER 1, 1928.
"That no exchange of foxes for stock can be completed nor can animals be removed from the ranches until all ranching fees due are paid."
Plaintiffs made no objection to this provision in the letter nor did they, prior to the commencement of the present proceedings, on September 15, 1931, demur or object in any manner to the demand for payment of the ranching fees as provided, or to the lien asserted by defendant on the foxes and their increase. The foxes required food, shelter, and care. Plaintiffs, by their own testimony, showed that their aim was to obtain a cash settlement for the foxes and their increase. They frankly stated that they wanted neither the foxes nor stock in the corporation, but desired a return of their money. The testimony further shows that defendant at no time refused to give up the foxes upon payment of the charges for their care. Plaintiffs brought the instant suit in trover for the value of the foxes. Defendant, in its answer, denied that it had ever refused to turn over the foxes to plaintiffs upon payment of the charges due for which it claimed a lien.
The trial judge held that defendant never claimed to own the foxes, but only sought payment for their keep, while plaintiffs desired that defendant take the foxes off their hands and pay for them; that under the most liberal construction of all of the testimony, plaintiffs had not established or maintained *485 any conversion on the part of the defendant. The record fully sustains the judge's opinion. Plaintiffs appeal from a judgment of no cause of action.
Plaintiffs claim that defendant was not entitled to the lien which it was asserting, and, therefore, a demand for the return of the foxes was unnecessary to establish a conversion. At common law, an agister who kept and cared for animals of any kind had no lien for their keep, unless one was created by special agreement. There was a lien, however, when the animal was trained for racing, and for medical treatment, etc., on the theory that there was an improvement of the object bailed. But this did not extend to the ordinary expenses of keeping and feeding. Towle v. Raymond,
We believe, however, that in the present instance there was a lien created by special contract. A lien created by express or implied contract will be enforced. Whitlock v. Heard,
On November 13, 1926, shortly after the expiration of the year term, defendant notified plaintiffs that the animals could not be removed from the ranch until all ranching fees due were paid. Plaintiffs made no effort to claim their property, but continued to permit the foxes to remain in defendant's care for several more years. They knew that they were wild animals, which could not be set at large, but required care and attention at a large expense. Plaintiffs' conduct was such that it amounted to an acquiescence and implied consent to a lien, and they are now estopped from complaining. SeeSchneider v. Dayton,
The testimony brought out the fact that defendant had thought it advisable and necessary to pelt some of the increase. The decision in this case is without prejudice to any claim that plaintiffs may have arising out of such pelting.
The judgment is affirmed, with costs to defendant.
McDONALD, C.J., and CLARK, POTTER, SHARPE, NORTH, FEAD, and WIEST, JJ., concurred. *487
