Folsom v. Barrett

• Decision Date: 26 February 1902
• Parties: FOLSOM v. BARRETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 439

62 N.E. 723

FOLSOM v. BARRETT.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1902

COUNSEL

P. B Runyan, for plaintiff.

Wm. R Buckminster, for defendant.

OPINION

HAMMOND J.

On July 27, 1899, the plaintiff had a lien upon the horse 'Sun Pointer,' to secure him for the payment of the expenses of its keeping up to that time. The amount due, as claimed by the plaintiff, was $300.96; and, although requested by the defendant, he refused to deliver up the horse except upon the payment of that sum. The auditor has found that the balance due at that time was only $129.17. The defendant requested the court to rule, in substance, that (1) if the defendant demanded the horse of the plaintiff, and the plaintiff refused to deliver him up, except upon the payment of a certain sum, which was larger than the sum actually due then, as matter of law, the plaintiff wrongfully held the horse; and (2) if the defendant requested of the plaintiff a statement of the amount due, so that the defendant could pay what was due and take his horse, and if upon that the plaintiff stated that he would not give up the horse, except upon the payment of a certain sum then named by him, which was materially in excess of the amount actually due, then the defendant was not bound to tender any sum to the plaintiff, and the latter wrongfully held the horse. The court refused to rule as requested, but ruled, in substance, that if the plaintiff fraudulently claimed more than was due, for the purpose of keeping possession of the horse, he wrongfully kept the horse, but that, if he believed the sum due him to be as stated by him at the time he refused to deliver the horse, then the fact that that sum was excessive would not work a discharge of the lien. No instructions were given as to the subject of tender.

Where a lienor bases his refusal to surrender property upon some right independent of or inconsistent with the lien, it is held that he was waived his lien, and he cannot afterwards set it up. Boardman v. Sill, 1 Camp. 410, note; Dirks v. Richards, 4 Man. & G. 574. But that is not this case. Here the plaintiff expressly named his lien and insisted upon it, and there was no question as to its nature. It was for the keeping of the horse a certain definite time. He based his right to hold the horse upon that lien, and upon nothing else. His demand, however, was excessive. He was right as to the existence of the lien, upon which right alone he was insisting, but wrong as to the amount due. If he fraudulently claimed more than was due, he lost his lien but, if his claim was made in good faith, it was still in the power of the defendant to discharge the lien by a payment of the sum actually due. If such a payment had been made at that time, the lien would have been destroyed, and consequently the subsequent detention of the horse by the plaintiff would have been wrongful; and that would have been so whether or not the plaintiff honestly believed his claim to be correct. The lien was simply a right to hold the horse until a certain sum was paid, and when that sum was paid the right was gone. The good faith of the plaintiff could not increase that sum. The same result would have followed if a tender of the sum due had been made and refused. Co. Litt. 207a; Coggs v. Bernard, 2 Ld. Raym. 909, 917; Bac. Abr. 'Bailment' (B); Jarvis v. Rogers, 15 Mass. 389, 409; Schayer v. Loan Co., 163 Mass. 322, 39 N.E. 1110, and cases cited. No payment or tender, however, was made; and where, as in this case, there is a lien, which is insisted upon by the creditor, and his only error is in making an excessive demand, which he honestly believes to be correct, the fact that the demand is excessive does not ordinarily relieve the debtor from the necessity of making a tender. If the debtor desires to avail himself of this honest mistake of the creditor, he must make or tender payment of the sum actually due; and neither the ability, readiness, or simple offer to pay is a tender. There must be an actual production of the money, unless such production be dispensed with by the express declaration of the creditor that he will not accept it, or by some equivalent declaration or act. Thomas v. Evans, 10 East, 101; Breed v. Hurd, 6 Pick. 356. See Chit. Cont. (10th Am. Ed.) 890, 891. We are of opinion that there is no evidence in this case of any declaration or conduct of the plaintiff which would excuse the defendant from making an actual tender. It is true that the bill recites that the plaintiff refused to deliver up the horse, except upon the payment of the $300.96; but it does not...