| Me. | Jul 1, 1873
Trover for the value of a merchant’s counter. There is no question but the voluntary relinquishment, by the bailee, of possession of the subject of the bailment discharges his lien, unless it is consistent with the contract, the course of business or the intention of the parties. The conduct of the bailee in parting with his possession is inconsistent with the preservation of his lien, and where that is proved, the presumption is, that he has waived, or abandoned it, unless Ms conduct in so doing is satisfactorily explained. Danforth v. Pratt, 42 Maine, 52; Spaulding v. Adams, 32 Maine, 212.
The judge of the superior court found as matter of fact, that the defendant left the counter, upon which it is conceded he had • a lien for storage, in the store, from which he removed when he went into a new store, where it remained for two or three months thereafter, and until the owner of the store notified the plaintiff’s intestate to remove it.
These facts, unexplained, prove that the defendant parted with Ms possession during that interval, and raise the presumption that
But it is argued by the counsel for the defendant that this infirmity, if such it is, is cured by the other facts found by the judge, that the plaintiffs’ intestate made a subsequent agreement with the defendant to take the counter into his new store to which it was removed and where it remained when this action was brought. If that arrangement constitutes a waiver of the forfeiture, it must be because such was the intention of the parties. But the judge did not find such intention. On the contrary, he did find that that arrangement was a new one differing widely in terms from the former one, and independent of it.
Bpon a view of the whole case the judge held, as matter of law, that the defendant had lost his lien, and we see no reason for questioning the soundness of his decision.
Exceptions overruled.