162 Ky. 568 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming
The appellant coal company relied for its defense against the enforcement of the lien upon the fact, as they alleged, that the appellees had waived their lien, and further, by their acts and conduct, they were estopped to assert or enforce their lien. Upon this issue the proof of the case seems to have been taken. The coal company introduced evidence showing that they had entirely paid Taylor the price they were to pay bim finder his contract, upon the pay days heretofore mentioned, and that one Heath, who seems to be some kind of an agent of the company, and who had supervision of the construction of the houses and the mining of the coal, had requested Fuller and Elam to make a report of the number of days they had worked, from time' to time, to the company, and said to them that it would pay them their wages, but. that, for some reason or other, Fuller and Elam did not desire to do so, and failed to do so. As to. whether or not this notice was ever received by them was a matter of serious controversy in the testimony, since they each deny positively that Heath ever made any such request of them, except in the case of Fuller, who stated that Heath had directed him to do that, after he had quit work, and that, in accordance with that direction, he had applied to the manager of the coal company, who declined to pay bim anything; but whether the contention of the company is correct or not in that regard there does not seem to have been any obligation upon either Fuller or Elam to make report of their time to the company, because they were employed by Taylor, and were acting under his directions, and each testified that Taylor informed them that he reported the time they had each worked to the company, and Taylor testified that he had paid to each of them all of the money which the company had paid him for them.
The rule bearing upon the waiver of a lien, as expressed in 25 Cyc., 672, is, that a lien may be waived by an express agreement, based upon a valuable consideration, or it may be waived by implication, the question whether or not there is a waiver in a particular case being one of intention to be determined by the circumstances.
That there was any express, agreement on the part of either Fuller or Elam to waive their lien no one contends, and there is no contention that there was any consideration for the waiver upon the part of either of them, and we do not find any conduct of either of them which is inconsistent with the existence of the lien.
In 27 Cyc., 262, it is said: “That in order to establish a waiver of a lien the intention to waive must clearly appear, and the waiver of a lien will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party was mislead to his prejudice into the honest belief that some waiver was intended or consented to.”
The mere fact that Taylor testified that Fuller said to Mm during the progress of the work that he was looking to him for his wages would not amount to a waiver of a lien, because, even if he had taken Taylor’s promissory note for the debt, it would not have discharged the lien, unless the note had been paid. (Mivalaz v. Grenovely, 28 R., 203.)
In 27 Cyc., 277, it is said: “Statements or acts of a lienor cannot estop him to claim a lien as against the owner, where he was not misled or induced to change his position thereby.”
There is no evidence for the appellants in this case which even tends to show that the appellant coal company was misled or induced to change its position with regard to the matter in controversy by any statement or act of either Fuller or Elam.
It appearing that the appellees come within that class, who, by the provisions of Chapter 79 of the Ken