Nicholas v. Baldwin Piano Co.

• Decision Date: 15 May 1919
• Docket Number: No. 9834.,9834.
• Citation: 123 N.E. 226,71 Ind.App. 209
• Parties: NICHOLAS v. BALDWIN PIANO CO.
• Court: Indiana Appellate Court

71 Ind.App. 209

123 N.E. 226

NICHOLAS

v.BALDWIN PIANO CO.

No. 9834.

Appellate Court of Indiana.

May 15, 1919.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by the Baldwin Piano Company against Samuel W. Nicholas.From judgment for plaintiff, defendant appeals.Affirmed.

Wm. W. Lowry, of Indianapolis, and Samuel L. Trabue, of Rushville, for appellant.

John H. Kiplinger and Donald L. Smith, both of Rushville, for appellee.

BATMAN, P. J.

This is an action in replevin commenced by appellee against appellant to recover the possession of a piano and stool.The complaint is in the usual form for such an action, and was answered by a general denial.On the trial the court made a special finding of facts, and stated its conclusion of law thereon in favor of appellee.From a judgment rendered in accordance therewith, appellant has appealed, claiming that the court erred in its conclusion of law on the facts found.Appellant contends that the finding of facts shows that he had a common-law lien as an innkeeper on the property in question, which gave him a right to the possession thereof, and that the court erred in its conclusion of law to the contrary.Appellee, on the other hand, asserts that there is no common-law lien in Indiana in favor of innkeepers, and that the conclusion of law was properly stated.

[1][2][3] The common law gives an innkeeper a lien upon the goods brought into his inn by his guest, for board and lodging furnished the latter at his request, although the goods may not be the property of said guest, provided the innkeeper is not aware of such fact.This proviso, however, is not applicable under all circumstances where the guest is the agent or servant of the owner of the goods.22 Cyc. 1090.By the adoption of the common law, as a part of the law of this, state, innkeepers doing business therein acquired the right to assert such a lien in all proper cases, and such right still exists unless they have been deprived thereof by legislative enactment.It is well settled in this state that it will be presumed that the Legislature does not intend by the enactment of a statute to make any change in the common law beyond what it declares, either in express terms or by unmistakable implication.Chicago, etc., R. Co. v. Luddington(1910)175 Ind. 35, 91 N. E. 939, 93 N. E. 273.An abrogation of the common law will be implied, where a statute is enacted which undertakes to cover the entire subject treated and was clearly designed as a substitute for the common law in that regard, or where the two laws are so repugnant that both in reason may not stand.8 Cyc. 376; 26 A. & E. Ency. of Law, 665;1 C. J. 991;5 R. C. L. 815;Boston Ice Co. v. Boston, etc., Ry. Co., 77 N. H. 6, 86 Atl. 356, 45 L. R. A. (N. S.) 835, Ann. Cas. 1914A, 1090;Drady v. District Court, 126 Iowa, 345, 102 N. W. 115;Graves v. I. C. R. Co., 126 Tenn. 148, 148 S. W. 239;Raleigh County Bank v. Poteet, 74 W. Va. 511, 82 S. E. 332, L. R. A. 1915B, 928, Ann. Cas. 1917D, 359;Young v. Kansas City, etc., Ry. Co., 33 Mo. App. 509.In 1897the Legislature of this state enacted a statute for the protection of owners and keepers of hotels, inns, restaurants, boarding and eating houses, which is still in force.It contains three sections, the first of which provides a penalty for obtaining food, lodging, entertainment, or other accommodations, at any of the places named above, with intent to defraud the owner or keeper thereof.The second prohibits any person boarding or lodging, or who has boarded or lodged, at any of the places named above, from removing any trunk, valise, or other baggage therefrom, which he may have therein, “until all claims for bills, lodging, entertainment or accommodations have been fully paid and satisfied in accordance with the regular advertised or special contract rates” thereof, and provides a penalty for its violation.The third section provides in part as follows:

“The owner or keeper of any hotel, inn, restaurant, boarding or eating house, as provided in this act, shall, after demand for payment be made of the person or persons owing any such claims or bills, as set out in the preceding section of this act, have a lien against the personal property and the wages due of any person or persons who may owe said owner or keeper for food, lodging, entertainment or other accommodation, to the...