Fowler v. Parsons

• Citation: 9 N.E. 799,143 Mass. 401
• Parties: FOWLER and another v. PARSONS and another.
• Decision Date: 10 January 1887
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 401

9 N.E. 799

FOWLER and another v. PARSONS and another.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1887

COUNSEL

C.T. Russell, Jr., for defendants.

It is well settled, to recover in a replevin suit, the plaintiff must show a general or special property in the goods, with the right to immediate and exclusive possession at the time of the commencement of his suit. Pub.St. c. 184, § 10; Wells Repl. 94; Wade v. Mason, 12 Gray, 335; Barry v O'Brien, 103 Mass. 521; Waterman v Robinson, 5 Mass. 304; Johnson v. Neale, 6 Allen, 227, 229; Dawson v. Wetherbee, 2 Allen, 461. The defendants' answer puts in issue the plaintiffs' right to possession of the molasses. Chase v. Allen, 5 Allen, 599. If the jury believed Lambert's evidence, the plaintiffs were precluded from claiming possession of the molasses. The case comes within the familiar rule of estoppel in pais. Wendell v. Van Rensselaer, 1 Johns.Ch. 344, 354. For cases where the rule has been applied, see Dewey v. Field, 4 Metc. 381; Ladrick v. Briggs, 105 Mass. 508; Hinchley v. Greany, 118 Mass. 595; Griffin v. Lawrence, 135 Mass. 365; Graves v. Lake Shore R.R., 137 Mass. 33. The representation operating such estoppel may come from pure silence. Bigelow, Estop. 564; Gregg v. Wells, 10 Adol. & E. 90, 98; Pickard v. Sears, 6 Adol. & E. 469; Niven v. Belknap, 2 Johns. 573. And see Leather Manufacturers' Bank v. Morgan, 117 U.S. 96, 108; S.C. 6 S.Ct. 657; Morgan v. Railroad Co., 96 U.S. 716. The court refused entirely to apply this principle to the evidence, and to allow the jury to pass upon the question whether this standing by on the part of the plaintiffs, and allowing Lambert to pay the duties and assume the liability, was not such conduct as made an estoppel. But the court treated the case merely as one of lien and waiver of lien. It erred in the instruction given upon that point. Wells, Repl. § 123; Bush v. Lyon, 9 Cow. 52; Jones v. Sinclair, 2 N.H. 319; Everett v. Coffin, 6 Wend. 603, 608. The lien never was discharged. It is not claimed that the debt has ever been paid, or even tendered. The plaintiffs must show payment or tender, not merely willingness to pay, to entitle them to a replevin suit. There was no evidence of waiver of such tender by Lambert, except as inferred from his statement. He made no statement of the nature of his title or claim, but simply refused to surrender it. It is well settled "a lien is not waived by the mere omission to place the refusal to deliver or account on the specific ground of lien. The doctrine that a party shall not be permitted at the trial to assume a distinct ground of defense from that set up when a demand is made, applies only where he puts his right upon some distinct ground at the time of demand, and not when he merely omits to assert the ground relied upon at the trial." Everett v. Coffin, 6 Wend. 603; White v. Gainer, 2 Bing. 23; Boardman v. Sill, 1 Camp. 410, note; Avery v. Hackley, 20 Wall. 407, 411. It was not for Lambert to make claim to the repayment, as implied in the court's instruction. He had a lien, and could retain and assert it until the plaintiffs took the affirmative action of discharging it.

B.F. Hayes, for plaintiff.

The real issue tried to the jury was whether the general ownership of the replevied goods was in the plaintiffs or the defendants. The instruction requested was rightfully refused. Mexal v. Dearborn, 12 Gray, 336; Hudson v. Swan, 83 N.Y. 552; Newell v. Newell, 34 Miss. 400; Perkins v. Barnes, 3 Nev. 557. The circumstances of this case made it the duty of Lambert, when the demand was made for the goods, to state the measure of his claim, if any, upon them, if he considered himself as then standing in any relation of qualified ownership in the property. Mexal v. Dearborn, ubi supra; Dows v. Morewood, 10 Barb. 183; Thatcher v. Harlan, 2 Houst. 178; Hanna v. Phelps, 7 Ind. 21; Thompson v. Rose, 16 Conn. 71; Everett v. Saltus, 15 Wend. 474. It was for the jury to say whether Lambert's testimony was a bona fide explanation, and whether he refused because of a claim for repayment of duties. Delano v. Curtis, 7 Allen, 470; Powell v. Olds, 9 Ala. 861; Thompson v. Rose, ubi supra; Shaw v. Hall, 134 Mass. 103. See Drake v. Curtis, 1 Cush. 395, at page 414; Towne v. Fiske, 127 Mass. 125. The question of estoppel does not arise in this case. There is no evidence showing that the "plaintiffs or their agent" knew either that the duties were paid, or that landing permit had been obtained.

OPINION

FIELD J.

If the goods replevied were taken from the possession of the defendant Lambert, and he had a lien upon them for money paid for customs duties, the action cannot be maintained unless this lien was discharged or waived before the action was brought. The neglect to pay the amount of the duties, or to make a tender of the amount, is not exercised because it would be useless, in the sense that, if such a payment or tender had been made, the defendant would still have refused to surrender the goods. A tender of the amount cannot be said to be useless, although the defendant does not accept it, because the plaintiffs must have the right of immediate possession in order to maintain the action; and, if a lien is not waived, it must be discharged before the plaintiffs can have this right.

The next question is whether the exceptions disclose any evidence for the jury that the defendant had a lien. If trover had been brought, the value of the goods at Grand Cayman would have been the measure of damages. But in replevin it has often been found impossible to prevent the plaintiff from obtaining the benefit of an increase in the value of the property caused by the defendant, although the defendant, in expending money upon the property, has acted in good faith. If money has been expended, it cannot be recovered unless it has been expended at the express or implied request of the other party, and except, perhaps, in the case of innkeepers, a lien upon goods cannot be created without the express or implied assent of the owner. In the case at bar, the master and the owner of the schooner would not have had, against the plaintiffs, a lien upon the goods for freight; and, if they would not, the defendant Lambert could not acquire such a lien by paying the freight. Robinson v. Baker, 5 Cush. 137; Stevens v. Boston & W.R.R., 8 Gray, 262; Clark v. Lowell & L.R.R., 9 Gray, 231; Gilson v. Gwinn, 107 Mass. 126; Storms v. Smith, 137 Mass. 201. The United States have probably a lien against the owner for duties upon imported goods in their custody, although the importation has been made by and on account of a person who came wrongfully into the possession of the goods, and the duties must be paid, if the goods are entered for consumption, and are withdrawn from the custody of the United States; but this lien is not transferred to the person who pays the duties and receives the goods. The general rule is that no lien can be implied in favor of a person who acts adversely to the rights of the owner. Cases cited supra; Lempriere v. Pasley, 2 Term R. 485; Allen v. Ogden, 1 Wash.C.C. 174.

The defendant Lambert puts his claim, however, upon the ground that the plaintiffs, by their conduct, are estopped from denying that he had a lien, or from denying that the duties were paid for their use and at their request. The instructions given by the court are not merely that, if a tender would have been useless, the failure to make it would not prevent the plaintiffs from maintaining the action, but this involves also the question of a waiver of a tender by a general and absolute refusal to surrender the goods. The principles invoked on both sides are essentially those of equitable estoppel. Each party contends that the other neglected to speak when it was his duty to speak, whereby the other was intentionally misled into doing or omitting to do what otherwise he would not have done or omitted. These equitable principles are enforced in actions at law when they go to the whole action. Mexal v. Dearborn, 12 Gray 336; Thompson v. Rose, 16 Conn. 71; Everett v. Saltus, 15 Wend. 474; S.C. on error, 20 Wend. 267. When the facts on which a lien rests are as well known to the plaintiff as to the defendant, and the defendant simply refuses to give up the property, without alleging any reason, we do not think that a lien, if one exists, is thereby waived. Everett v. Coffin, 6 Wend. 603; White v. Gainer, 2 Bing. 23; Avery v. Hackley, 20 Wall. 412. It may be that if the lien is unknown to the plaintiff, and the defendant knows or has reason to know this, it is the defendant's duty, when a demand is made upon him for the property, to give the plaintiff notice of the lien if he relies upon it; and it has been often held that, when the defendant puts the refusal to surrender property upon a ground which is inconsistent with a lien, he cannot defeat an action by setting up a lien of which the plaintiff was ignorant at the time he brought the action. Still, even in these cases, there may be a distinction between waiving the necessity of a tender as a condition precedent to the right of action, and losing the right to have a...