Munson v. Porter

• Decision Date: 25 April 1884
• Citation: 19 N.W. 290,63 Iowa 453
• Parties: MUNSON v. PORTER.
• Court: Iowa Supreme Court

63 Iowa 453

19 N.W. 290

MUNSON

v.PORTER.

Supreme Court of Iowa.

Filed April 25, 1884.

Appeal from Scott district court.

Action for the recovery of specific personal property, to-wit, a horse, buggy, harness, and buffalo robe. The defendant claims the right to hold possession of the property by virtue of a livery-stable keeper's lien. There was a trial without a jury, and judgment was rendered for the defendant for costs. The plaintiff appeals.E. F. Richmon, for appellant.

Geo. E. Gould, for appellee.

ADAMS, J.

The defendant is a keeper of a livery and feed stable in the city of Davenport. As such, the plaintiff employed him to keep five different horses, and among them the horse in question. He employed him, also, to keep the other property in question. The defendant's account against the plaintiff commenced in 1878. His charge for keeping the horses amounted to $456.22. No charge was made for keeping the other property. The plaintiff paid on account $140, leaving due the defendant, as he claims, $316.22. The amount charged for keeping the horse in question is $210.88. In the spring of 1881 the defendant began to complain of the plaintiff's slowness in making payments, and threatened to detain the property. In November of that year this action was commenced to recover possession. The questions presented pertain to the validity of the defendant's lien. Prior to the enactment of chapter 25 of the Acts of the Eighteenth General Assembly a livery stable keeper acquired no lien, as such, upon property kept by him in the course of his business. McDonald v. Bennett, 45 Iowa, 456. The keeping of the horse in question commenced before that time. For the keeping prior to the time when the act took effect it would seem to be clear that the defendant acquired no lien. The plaintiff insists that he acquired none for the keeping afterwards. The fact appears to be that the keeping was continuous. The plaintiff's theory is that the contract for keeping, being made at a time when the law gave no lien, it must be presumed that the parties did not contemplate that the defendant should have a lien, and that he could not properly be deemed to have acquired one in the performance of that contract. If the defendant had contracted in the outset to keep the horse during the time which he did it could not have been said that he was induced to make the contract by the fact that he might have a lien, and there would perhaps be some plausibility in the plaintiff's position. But no specific time appears to have been agreed upon during which the horse was to be kept. There was, then, no executory contract to be treated as a unit and to be governed by the law in force at the time it was made. As, then, the defendant was free to continue or discontinue keeping the horse after the act, it is not for us to say that he did not continue in reliance upon the act. In our opinion the plaintiff's position cannot be sustained.

There was evidence showing that the property was exempt from execution. The plaintiff contends that a livery-stable keeper's lien cannot attach upon such property. It may be conceded that the lien can be enforced only by execution. But the statute which gives the lien does not except exempt property, but expressly gives the lien upon all property coming into the liverystable keeper's hands. We do not wish to be understood as holding that the rule would be different if the right to a lien existed simply by common law. An inn-keeper's lien exists by common law, and it was held in Swan v. Bournes, 47 Iowa, 502, that it attached upon exempt property.

But the plaintiff contends that even if the defendant had a lien he lost it by claiming a lien for a general balance of account and for indebtedness for which he had no lien. The balance claimed was $316.22, which included something for keeping other horses, and something, we think, for keeping the horse in question for which he had no lien. What the rule would be if the plaintiff had tendered the amount for which the defendant had a lien, and the defendant had refused to surrender the horse, we need not determine. It seems to have been held that where a person who has a lien upon property sets up a claim to it distinct from, and independant of, his lien, he will be deemed to have waived his lien. Perhaps, too, he would be deemed to have waived or forfeited it by wrongfully claiming a lien for a larger indebtedness than that for which he had a lien, if he failed to disclose the true amount; and the same could not be presumed to be within the knowledge of the debtor so that he could tender the true amount for which the lien was held. Thatcher v. Harlan, 2 Houst. (Del.) 178. See, also, in this connection, Winter v. Coit, 7 N. Y. 288;Hanna v. Phelps, 7 Ind. 23;Judah v. Kemp, 2 Johns. Cas. 411;Holbrook v. Wright, 24 Wend. 176;Mexal v. Dearborn, 12 Gray, 336. But we see nothing in the case at bar to hinder the plaintiff from discovering the true amount for which the defendant had a lien so as to enable him to make a tender of that amount if he desired. The defendant's account appears to have been itemized, showing the amount due for keeping the horse in question, and the time for which the charge was made. Probably, aside from the account, the plaintiff's...