Faulkner v. Harding

• Decision Date: 20 April 1880
• Parties: JAMES D. FAULKNER ET AL., Respondents, v. GEORGE M. HARDING, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 12

JAMES D. FAULKNER ET AL., Respondents,

v.GEORGE M. HARDING, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1880.

1. That in similar transactions between the same parties an artificer had waived his possessory lien, does not tend to show a waiver in a subsequent and distinct transaction.

2. A plaintiff in replevin, entitled to the possession of certain pictures framed by, and left with an artificer, cannot also take the frames, upon which the artificer claims a lien; nor is the latter bound to remove the frames from the pictures.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

DONOVAN & CONROY, for the appellant: Appellant was entitled to a lien on the pictures for his services.--Story on Ag. (6th ed.), sects. 353, 354, 360, 365, 374, and cases cited. The “usage of trade” set up in respondent's reply in this cause was not proved.-- South-Western, etc., Co. v. Stanard, 44 Mo. 71, and cases cited.

G. D. BANTZ, for the respondents: Credit raises an implied waiver of lien.-- Hanna v. Philps, 7 Ind. 24; 3 Pars. on Con. 248, note w. A mortgagee of chattels, after condition broken, is entitled to the possession.-- Bowens v. Benson, 57 Mo. 26.

HAYDEN, J., delivered the opinion of the court.

Under an order of delivery the plaintiffs took possession, in replevin, of certain paintings and their frames. The plaintiffs claimed title by virtue of a chattel mortgage given to them by Meeker, the owner and artist who had painted the paintings, and put them in the hands of the defendant, an artificer, to be framed. The defendant accordingly framed the paintings, and claims a lien by virtue of the work which he did, and of his possession. The defendant had previously done work of the same kind upon other pictures of Meeker's, and had an unsettled balance for work; but the lien here claimed is particular, for the cost of framing these paintings, which, with their frames, the plaintiffs, through the sheriff, took from the defendant. The question is, whether defendant's lien was good as against the plaintiffs' writ. The court below gave the following instruction:--

“If the court, sitting as a jury, find from the evidence that by the course of dealings between Meeker and the defendant, credit was given to Meeker for frames furnished him by defendant, and that at the time defendant made the frames in question, no other or different agreement was spoken of or made between the parties (said Meeker and defendant), then the frames in question were also contracted for on the same terms, and the defendant waived his right of lien thereby.”

There was a finding and judgment for the plaintiffs.

As the plaintiffs took both paintings and frames, no question arises as to their right to the paintings apart from the frames. The two must be regarded as one thing. It is said that the defendant would not take the two apart, but he was not bound to. It was for the plaintiffs to act, and take the consequences of their action as between them and the defendant.

We do not think that the instruction quoted was applicable to the facts,...