Hyperlawhypertext legal database De Vinne v. Rianhard 9 Daly (N.Y.) 406

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De Vinne v. Rianhard

9 Daly (N.Y.) 406 Court N.Y.C.P. Decision date 1880-12-06 English

Delivered by Charles P. Daly, Chief Justice.

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p. 406
Theodore L. De Vinne et al., Respondents, against Thomas M. Rianhard, Receiver, &c., Impleaded, Appellant.
(Decided December 6th, 1880.)

Headnote

The type used for printing a publication, of which new editions were issued semi-annually, was owned by the corporation which issued the publication, hut remained in the possession of the plaintiffs, who printed the successive editions^After each edition was printed, the type was not distributed, but was left standing as it had been set up in pages, and alterations were made in it when required for the changes to be made in the next edition. Held, that as the value of the type, as such, was not enhanced by the work done, no lien coul_dAe.mquired therefor on the type except by special contract.
One of the plaintiffs testified that he had stated, in conversation with one of the members of the corporation, that by the arrangement then existing, the plaintiffs held the type _in J:heiv_possessjon jqx_tiieir_se.cunty. Held, that" although the claim was not controverted ox. disputed_by; that member,UKiswoñTd not amount to an acquiescence _or admission,on the part qf^e_cmq3qralion that a contract existed_belwe.enjt-andAh<Llllaintiffs to that effect. ISfor would the corporation,_by allowing the plaintiffs to gojmwith the work after such statement, be estopped from afterwards setting up that they had_u£jien^on_tiie type fo.rttieir wprk; especially as, ^yA6S4SS5)ííac*ul'inS comjpames_acLof 1848 and. its amendments^jinder which the corporation^ was_created. it was forbidden to give such a lierc_ ~
Arread from a judgment of this court entered on the report of a referee.
The action'was brought to fprelose _a lien claimedJiy.J;he plaintiffs_upon^eztain_ty.p,e, for printingjtnd otherwork done hyAheiSLfgr._thedefendants, the owners .of the type. The plaintiffs_were jirinters, and had for 'many years printed for the defendant,. Ahe ..McKillon. .&. Sprague Oompaiiy, of which the defendant Rianhardjhad been appointed receiver, a commercial register, published semi-annually, giving the financial standing of merchants throughout the United States. The company had purchased a large quantity of type for printing its~l^Isierj~the greater portion of' which was usually left standing as set up in pages for the issue of each edition of the
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book until the time came for printing the next edition, when the practice was, instead of setting up the type anew, to merely make such corrections and changes as might be rendered necessary by changes in the matters to be published.
The action was referred by consent, and upon trial the referee found for the plaintiffs. His report was confirmed ; and judgment thereon was directed for the plaintiffs. From the judgment the defendant Rianhard appealed.
J. Henry Work and Roger Foster, for appellant.
The plaintiffs have no lien iipon this property by contract, express orjmplied. The contract between the parties was mjvriting, in the shape o? a proposition signed by one party and verbally asIentecT~to by the other, bv which preceding conversations were rendered of no effect (Hinckley v. New York Central, (&c. R. R. Co., 56 N. Y. 429 ; Mallory v. Tioga R. R. Co., 3 Keyes, 356 ; 3 Abb. Ct. of App. Dec. 139). The conversation did not create a lien on the, propexty (Hunt v. Rousmaniere, 1 Pet. 1 ; Pollock on Contracts, 1st Eng. ed. 474; Smith v. Hughes, L. R. 6 Q. B. 597). The property in question is that of a corporation organized under the act for the formation of companies for manufacturing, &c., purposes, and nojmortgage pr lien could be put upon it bv means of conversation with one of its officers (Vail v. Hamilton, 20 Hun, 355 ; 2 R. S. 6th ed. 501). No one can do by estoppel what he cannot do by deed (McKoon v. Smith, 3 Hill, 147 ; Spencer v. Karr, 45 N. Y. 406 ).
The plaintiffs had no lien upon the type for the value of materials furnished and work done for the company in bookbinding, &c. The only foundation for such a claim would be a general lien by usage (Bleaden v. Hancock, Mood. & M. 465), or a special contract, neither of which existed.
Ño special lien, such as_is implied bxHwJsJavor^of the artisan, ^existed jiere. To support an artisan’s lienjt must appear that he has permanently injnp^dJhejvalue_of _the article upon which his Táhorjasjbeen^performejianduppnjvy he" claimi his lien (Green v. Farmer, Wm. Blackst. 652 ; Éx parte Ockenden, 1 Atk. 235; Scarfe v. Morgan, 4 Mees. &
p. 408
W. 270; Jackson v. Cummins, 5 Mees. & W. 341; Grinnell v. 3 Hill, 485 , 491).
No artisan’s lien can exist here for the further reason that the work was done upon credit. As a general proposition, there can be no lien where credit is given (3 Parsons Contracts, 348 ; 2 Kent Comm. 635). This doctrine has been in force since the origin of liens. It is found in the Roman law (Inst. Lib. 2, tit. 2, § 41). It is found in the year books (5 Ed. Y. 1, 2 b, E. T.). It has prevailed to the present day (Raitt v. Mitchell, 4 Camp. 146; Cowell v. Simpson, 16 Vesey, 275; Hewison v. Guthrie, 3 Scott, 298; 2 Bing. N. C. 755; 2 Hodges, 51; Mason v. Morley, 34 Beav. 471; C ummings v. Harris, 3 Vt. 244 ; Hutchins v. Olcutt, 4 Vt. 549 , 551; Stoddard Woolen Man'y v. Huntley, 8 N. H. 441 ; Moore v. Hitchcock, 4 Wend. 292 ; Hodgdon v. Waldron, 9 N. H. 67 ; Brown v. Gilman, 4 Wheat. 255 ; Trust v. Pirsson, 1 Hilt. 292; Fieldings v. Mills , 2 Bosw. 489 ).
Thomas Allison, for respondents.
Proof was admissible that the plaintiff’s letter didjiot embody the whole agreement, ancTtEat it was also agreed that, as security for the indebtedness to he incurred, plaintiffs were to have a lien on the type in their possession (Chapin v. Dobson, 78 N. Y. 74 ; French v. Carhart, 1 N. Y. 96 , 102; Blossom v. Griffin, 13 N. Y. 569 ; Hutchins v. Hebbard, 34 N. Y. 24 ; Barney v. Worthington, 37 N. Y. 112 , 115 ; Griffiths v. Hardenbergh, 41 N. Y. 464 ; Grierson v. Mason, 60 N. Y. 394 ). The finding. pf_the referee that there was an understanding and agreement between plaintiffs and the comp_any_tliat .the ..pages,_pf type_ should be held and retamedJn the.possession of plaintiffs^as„securityjff)r all the sums claimed in this action, and Jield and retained by plaintiffs. and.that.plaintiffaJiad_a lien_therspn under said agreementforsaid_sjums,.is,sustainedhythe-evidenee. The decIáFatioñslñacíe by the plaintiffs to the"defendants, without dissent, that they understood the agreement to be that plaintiffs should have a lien on the type as security, were an agreement, or at least evidence of an agreement for such lien (Trevor v. Wood, 36 N. Y. 307 -310). The circumstances,
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the continued possession by plaintiffs of company’s type year after year, were also facts tending: Acuaapport the claim of a lien (White v. Hoyt, 73 N. Y. 505 , 511, 512; Phillip v. Gallant, 62 N. Y. 256 , 263, 264; Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405 ; Johnson v. Hathorn, 2 Keyes, 476). The Question whether plaintiffs had a lien or not was a mixed one of fact and law when these declarations were made, and the company, having allowed the plaintiffs to go oipwith^ the work on the' assumption that there was a lien, was estopped from afterward claiming there was no lien (Favill v. Roberts, 50 N. Y. 222 ; Brown v. Bowen, 30 N. Y. 519 ; Creque v. Sears, 17 Hun, 123 ; Tilton v. Nelson, 27 Barb. 595 ; Storrs v. Baker, 6 Johns. Ch. 166 ; Wendell v. Van Rensselaer, 1 Johns. Ch. 344 ).
Irrespective of the agreement, a lien for the work done and materials furnished is given by the law (McFarland v. Wheeler, 26 Wend. 467 , 473, 479, 480; Morgan v. Congdon, 4 N. Y. 552 , 553; 2 Kent Comm. 634-638 ; Mount v. Williams, 11 Wend. 77 , 79; Grinnell v. Cook, 3 Hill, 485 , 491).
The rule that, when credit is given, there is no lien, is founded on the principle that a right of possession is necessary to the existence of a.lien ; and where credit is not inconsistent with the right of possession, a lien may exist. The rule does not apply where jt__is not intended that all the property shall be delivered before the debt becomes payable (Mount v. Williams, 11 Wend. 77 ; 3 Parsons Cont. 5th ed. 254-256; Edwards Bailm. 2nd ed. § 423).

The plaintiffs, in my opinion, had no lien upon the type. It was held in Bleaden v. Hancock (Mood. & M. 465), that a printer has no lien upon stereotype plates which are left with him to print from; and I can see no distinction, so far as respects the right of lien, between type, as such, and stereotype plates. Cross, a careful and very reliable elementary writer on the law of lien says, • as the result of the cases when his book was written, forty years ago, that “ the courts have recognized and allowed without restriction, the right of .every bailee to a lien on the goods bailed

p. 410
to him, where any additional value has been conferred by him on the chattel, either directly by the exercise of ¡personal labor and skill or indirectly by the intermediate use of any instrument over which he has controland that the right, when it does not exist from usage, or is not obtained^ by contract, depends upon whether any additional value has been conferred by the bailee on the chattel, may be illustrated by the decision in Jackson v. Cummins (5 Mees. & W. 342), that an agister, or one who takes charge of horses or cattlc^has no" lien for their keep, because he does not confer any additional value on the animal but merely takes charge of it and feeds it; and the decision in Scarfe v. Morgan (4 Mees. & W. 270), that one who receives a mare to be covered by a stallion has a lien, as the mare may be made more valuable, by proving in foal; in the first of which cases, Baron Pabk declares the rule to be as fol-\ lows: The general rule is, in the absence of any special agree-1 ment^that,. vvlienever a party has expended labor «and skilljji_| the improvement of a chattel bailed to him, he has a lien upon ' it., This rule has been questioned in Steinman v. Wilkins ( 7 Watts & S. 466 ); but has been adhered to in this and other states (Grinnell v. Cook, 3 Hill, 491 ; Morgan v. Congdon, 4 N. Y. 553 ; Pinney v. Wells, 10 Conn. 105 ; Cummings v. Harris, 3 Vt. 244 ); and if it is to be departed from, it must be left to the court of appeals to do so. It is not for this court to overturn or disregard a long line of authorities. The respondent-relies...upon the rule as it is laid down by Senator Verplank in McFarland v. Wheeler ( 26 Wend. 467 )T"crThat everyAma.U-.who has lawful possession of anything upon which he has expended .his money, labor or skill, at the request-of thp owner, has a righhlo-detain it as security for„his-dgbt.” This is a loose statement of the rule, which is more correctly laid down by Jewett, J., in Morgan v. Congdon ( 4 N. Y. 553 ), as follows: that “Every,bailee for hire,jwho^ by his labor and skill has imparted cm additional vajue to the_ goojk,_has ajien, upon the property for the payment of his.reasonable bharges,” which is the rule that must be_applied in this case..

The type from which the.plaintiffs printed the “ Register,” from time to time, for the McKillop & Sprague Company, was

p. 411
furnished by the company, and belonged to them. It cannot be assumed that tlñTvalue of it, as type, was enhanced by the plaintiffs’Hh'intihg froiiri'tr'''C)ñffhWcbhtraivrYthere ishmy inference, it is that the constant use and printing from the type would diminish its value. The plaintiffs had a lien upon the book pnntedjfrom the type, for that was a thing producecTby their labor and skill; but I fail to see how, under the rule established by the authorities cited, they could acquire, except by contract, any lien upon the type, which was purchased by the McKillop & SpragñYüompany, and left with the -plaintiffs tqjpnnYfinm.^,

There is nothing in the evidence to warrant a finding that it was provided by contract between the plaintiffs and the McKillop & Sprague Company that the plaintiffs were to have the right to detain the type until they were paid for their labors and services in printing the “ Register.” The McKillop & Sprague Company were a corporation, and all there is on that subject, is the testimony of one of the plaintiffs, De Vinne, that he told Sprague, a member of the corporation, that the proposition which Sprague offered was declined because it would be weakening the plaintiffs’ security; that, under the arrangement then existing, they held the notes of the company and Mr. Tapper, and held the printing type of the company in their possession, and that if they took Tapper’s notes, they released the company and their claim on the types; and that Sprague, in reply, simply asked De Vinne if .he had considered the matter fairly, and that De Vinne replied that he had, and that then the conversation dropped. This was a statement to one of the members of the corporation, by one of the plaintiffs, that, by the arrangement then existing, the plaintiffs held the printing types in their possession for their security; but that did not establish that a contract to that effect existed;--It may have been that De Vinne assumed that by the law, he had a lien upon the type, which he would release if he took the promissory notes offered, which would be giving credit, as there is no lien, as a general rule, where credit is given (Trust v. Pirrson, 1 Hilt. 397, 298); but whether he did or not, De Vinne’s claiming that the plaintiffs had a

p. 412
right to hold the type as security, in a conversation with one member of the corporation, would not, because that member did, not controvert or dispute it, amount to an acquiescence or admission on the part of 'the corporation, that a contract existed between it and "the plaintiffs to~~thaf ~~ eBecf^rPolldcITon Contracts, 474; Angel & Ames on Corporations, § 309, 8th cd.). p ' '>

The respondent claims that, as the corporation, after that statement by De Yinne to Sprague, allowed the plaintiffs to go on with the work, under the assumption that they had a lien on the type, the corporation was estoppecTfrom afterwards setting -np.ihajLthere was no liexi. WithoufFoncecfing that the doctrine of estoppel would apply in any case to such a state of facts, it is sufficient to say, that a corporation-ismewer-fistopped to deny what it had no legal power to do (Hood v. New York, &c. P. P. Co., 22 Conn. 1502 ; Pennsylvania, &c. Steam Nav. Co. v. Dandridge, 8 Grill & J. 248).

The McKillop & Sprague Company, of which the defendant Rianhard is the receiver, was organized under the act of 1848 for the incorporating of manufacturing companies, &o., and the acts amendatory thereof; and bj^_section_2 of that act, was forb.idd(m-.j^^ixe_£my..Jien_upon _its_real or personFlYstate^ or to give__any:. mortgage^ for the payment of any__debt, contracted by it in the business jor _wffi<ffi_itjw^incpiqipr.ated, unless by the written assentof ^ockholders owning, at leastifcwothirds of the capital stock of the corporation, and_by filing the consent in jthe office of the clerk of tire county where the property mortgaged by it was situated (2 Fay’s Digest Laws of N. Y. 451, 452; 1 L. 1871 , p. 1009, § 2). The mere silence, therefore, of Sprague in the interview in which Dé Yinne claimed that an arrangement existed to hold the typqas" security, and the_fact that the employment of plaintiffs was continued thereafter b.y the_c.omp.any, could in jno way estop the cmppratiouj5r_its_receiveivfronpjlenyingjthat the corporation had' given any lien to the defendants, upon the type. There is another questionTas to the assunrptioiijff _thepxistenge of a lien where* credit was constantly given by the plaintiffs to the "companyfor“thApiymerit o"f" the work done, which,

p. 413
however, I do not purpose to go into; the conclusion being sutffcientTRmKtKeréNúJñodien upon the type, by the common law ; and tlfat there was~no contract- betweenlfhelplaintiffs and the corporation, to give one to the plaintiffs....

1 think, therefore, that the judgment upon the report of the referee will have to be reversed.

Larremore and Van Hoesen, JJ., concurred.

Judgment reversed.

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