Burdict v. Murray

• Decision Date: 01 January 1830
• Parties: BURDICT and HURLBURT v. HARVEY MURRAY and EZBON SANFORD
• Court: Vermont Supreme Court

3 Vt. 302

BURDICT and HURLBURT v. HARVEY MURRAY and EZBON SANFORD

Supreme Court of Vermont, Chittenden

January, 1830

[Syllabus Material] [Syllabus Material] [Syllabus Material]

This was an action of trespass for taking and carrying away a quantity of sheep skins and goat skins. Plea, not guilty. At the trial in the county court, TURNER, J., presiding, it appeared in evidence, that a contract had been made between Allen Murray and Warren Murray and the plaintiffs, by which the Murrays were to furnish four thousand skins annually for three years, to be tanned and dressed into morocco by the plaintiffs, and were to pay the plaintiffs therefor twenty-seven and a half cents for each skin. The Murrays were to furnish the skins from time to time as the plaintiffs might want them, and the plaintiffs were to dress and deliver them at their shop to the Murrays, finished in a merchantable condition, for the price above mentioned. Under this contract the skins in question had been delivered to the plaintiffs and after they had been partly dressed, and were in an unfinished state, the said Allen and Warren Murray turned them out to the defendant, Harvey Murray, a creditor, who caused them to be attached and taken away, on a writ of attachment against said Allen and Warren. The plaintiffs contended they had a lien on said skins for the labor already bestowed in dressing them, and other skins delivered on said contract, and also for the labor they were thereafter to bestow in completing them. It appeared that the said Allen and Warren Murray, after the date of said contract, from time to time delivered skins to the plaintiffs to be dressed, and from time to time paid them money, and delivered them property, in payment for dressing the same; that the plaintiffs from time to time delivered skins dressed to the said Allen and Warren Murray as they called for them, without reference to the state of their accounts; that the plaintiffs frequently sold skins and charged themselves with them, and at other times delivered skins to the order of said Allen and Warren; that in pursuance of an understanding of the said Allen and Warren and the plaintiffs--the plaintiffs kept a memorandum book in which they entered the skins received by them on said contract--the skins delivered back to the said Allen and Warren and to others by their order, also the several payments made by them for dressing, and also the number of skins dressed. The defendants offered said memorandum book and other evidence tending to prove that previous to the taking complained of in the plaintiff's declaration, the said Allen and Warren had paid the plaintiffs all that was due them for the labour bestowed in dressing the skins delivered in pursuance of said contract, and all they would be entitled to receive if they had completed the dressing of those described in the plaintiff's declaration and taken by the defendants. Which evidence was objected to by the plaintiffs, and excluded by the court--on the ground that the accounts of the said Allen and Warren could not be settled in this action of trespass. And the court charged the jury that they had nothing to do with the said accounts; that the determination of this suit did not depend on the state of the accounts; that if it should be found on settlement that Allen and Warren Murray had paid the plaintiffs for dressing all the skins, finished and unfinished, agreeably to contract, as the defendants alleged and contracted -- this would furnish the defendants with no defence to this suit; that the said Allen and Warren had no right, and could convey no right, to the defendants to take the skins without the plaintiffs' consent; and that if they found that the skins were taken by the defendants, on an attachment, out of the plaintiffs' possession, without their consent, and against their will, and that that suit was afterwards abandoned, to find the defendants guilty, and for the plaintiffs to recover the amount of the dressing; which the jury accordingly did. The defendants took exceptions to the decision and charge of the court, on which the cause was removed to this Court, and was now heard on a motion for a new trial.

Thompson, for the defendants.--1. The defendants contend, that where work is done by a manufacturer, & c. upon property, in pursuance of a special contract, there is no lien.--Bul. N. P. 45; 2 Esp. N. P. 197; 5 Bac. Abr. 271, 2 Esp. N. P 347; 2 Dane, 263, 264. The law gives to the tailor, common carrier, inn-keeper, & c. a lien on the goods, because they are compelled to perform certain services, independent of any particular agreement.--5 Bac. 268-9. The law attaches this imperative obligation to those engaged in certain occupations from their close connection with the public convenience; and, therefore, it attaches to them this peculiar and special security for payment; and mercantile usage and policy have further extended it, as in the case of factors, bankers, & c. But the plaintiffs do not stand in this relation to the public. The tanner is a manufacturer, not for the public, but for himself, and if he manufactures sheep skins into goat skin morocco, for others, it is, as in this case, in virtue of a special contract; and if, as in this case, he makes such special contact, without reserving the right of lien, he waives it.--2 Esp. N. P. 195; 4 Burr. 2221; 2 Esp. N. P. 191.

2. But, if the special contract, as well as the nature of the plaintiff's business, be not totally inconsistent, with the idea of a lien, in this case--still the course of dealings between the plaintiffs and Allen and Warren Murray, disclosed by the case, is repugnant to it, and shows a waiver of any such right on the part of the plaintiffs. Allen and Warren Murray, from time to time, delivered plaintiffs skins--from time to time paid them money, and property for the dressing--and the plaintiffs delivered skins to the Murrays or their order--sold skins frequently; and all this without any claim of lien, without any reference to the state of their accounts, but, on the contrary, make their whole transactions, in reference to the skins, a matter of account. Could a creditor of the Murrays, knowing this, infer a lien? Could he suspect it?

3. The defendants contend, that whether there was a lien or not in the plaintiffs, the action of trespass will not lie in this case. The case expressly states that the skins were turned out to the defendants by Allen and Warren...