Sargent v. Usher

• Decision Date: 13 March 1875
• Citation: 55 N.H. 287
• Parties: Sargent v. Usher.
• Court: New Hampshire Supreme Court

55 N.H. 287

Sargent v. Usher.

Supreme Court of New Hampshire

March 13, 1875

Agister's lien.

A mortgagor of horses cannot, without the knowledge acquiescence, or consent of the mortgagee, express or implied, "entrust" the horses to be boarded so as to subject them to a lien for their keeping---under Gen Stats., ch. 125, sec. 2---as against the mortgagee

TROVER for two horses. Writ dated March 31, 1874. Plea, the general issue. Trial before RAND, J., September term, 1874. The horses were taken at the plaintiff's barn, in Nashua March 25, 1874, by the defendant, under two mortgages given by George E. Robinson, one to the defendant, October 27 1873, duly recorded October 28, 1873, the other to one Charles W. Glidden, dated November 27, 1873, recorded

November 28, 1873, and duly assigned to the defendant, January 23, 1874. The parties to these mortgages, and the horses, were all of Malden, Massachusetts, at the time of the execution of said mortgages, and the mortgages and notes secured thereby were executed in Massachusetts. Either party may refer to said mortgages and the assignment in the argument. It appeared in evidence that said Robinson came with said horses to Nashua from Malden, about December 6, 1873, and made a contract with the plaintiff to board these horses at seven dollars per week: the horses remained at said Sargent's until March 25, 1874, when they were taken by the defendant under said mortgages: said Robinson boarded at said Sargent's, and, until a few days before the horses were taken, used the horses in hauling wood and timber for the plaintiff and one Humphrey, as partners, and sometimes twice a week in the evening driving out parties, and once in driving to town-meeting: said Robinson, while so using the horses, fed and took most of the care of them. During all said time the horses, at night, and when not so in use, were kept in the barn of the plaintiff, and he supplied them with food and took care of said barn. There was evidence tending to show that for a few days previous to the taking of the horses the plaintiff had them in his exclusive possession, boarded them, and took the sole and exclusive care of them, for which he has received no pay; and that said Sargent and Humphrey, a few days before the horses were taken, settled with said Robinson, and found that, after charging him with his own board, the board of his brother, a sled, and small sums of money advanced to him, they had overpaid him nearly fourteen dollars, which he still owes them; and he then ceased working for them and using said horses.

In January or early in February, before taking the horses, the defendant went to Sargent's in Nashua, saw the horses at Sargent's, but said nothing of their being mortgaged until the day he took them. A demand was made by the defendant on Robinson for the mortgage debt, which was not paid. The court instructed the jury that the lien of the plaintiff, if there was one, was of prior right to the mortgagee under the mortgages; that the lien would be created in favor of the plaintiff as against the defendant's mortgages, if the horses were entrusted to the plaintiff to be boarded; that the word entrusted, used in the statute, had the ordinary meaning. The court was requested by the defendant to instruct the jury that if said Robinson had the possession and use of said horses while they were being boarded or kept at Sargent's, during such time Sargent would lose his lien because the possession of the property should be in Sargent during such keeping; but the court declined, and repeated the instruction already given. The court were also requested by the defendant to instruct the jury that there was no evidence in the case upon which the jury could find that the horses were entrusted to the plaintiff to be boarded; but the court declined. The jury found a verdict for the plaintiff, and assessed the damages at $116.00, the amount due the plaintiff for board of said horses.

The defendant excepted to the ruling and instructions of the court, and the case is reserved and transferred for the opinion of the superior court. If this action can be maintained for the full amount of the board of the horses, judgment is to be rendered upon the verdict; if for no part of said board, judgment is to be rendered for the defendant; if only for the few days' board subsequent to the settlement, there is to be a new trial to ascertain the value of that board, unless the parties can agree upon the value.

A. W. Sawyer, Stevens & Parker, for the defendant. Fassett, Wadleigh & Wallace, for the plaintiff

LADD, J

The general property in the horses, carrying with it the right of possession, was in the defendant by virtue of the mortgages subject of course to the right of redemption in Robinson---Leach v. Kimball, 34 N.H. 568, Brackett v. Bullard, 12 Met. 308, 4 Kent's Com. 138, and Bank v. Jones, 4 N.Y. 497; and it is clear that, so far as regards any supposed power of the mortgagor to defeat this right of possession, and, in effect, abrogate this right of property by subjecting it to a lien, he stands in no different position from that of a bailee. The only question in the case, then, appears to be, whether the statute giving a lien for the agisting of cattle, &c., is capable of such a construction as will permit any one having in his possession the animals of another to subject them to a lien for their keeping as against the owner, without his knowledge, acquiescence, or consent, express or implied. And I am of opinion that it is not.

The act provides that "Any person, to whom any horses, cattle, sheep, or other domestic animals shall be entrusted to be pastured or boarded, shall have a lien thereon for all proper charges due for such pasturing or board, until the same shall be paid or tendered." Gen. Stats., ch. 125, sec. 2.

Now, if the whole construction of this act be made to turn on the word "entrusted," it undeniably follows that it makes no difference how the person entrusting animals to be boarded or pastured came by them, nor what his right to them is. A thief, a bailee, and an absolute owner are in this respect all put on the same footing. A sale of stolen goods by the thief passes no title against the owner, and the same is in general true with respect to a sale by a bailee, unless he has been so clothed with the indicia of title by the owner, or held out as authorized to sell in such way that the loss ought by reason of his own acts to fall upon the owner rather than on an innocent purchaser. The maxim, Nemo plus juris in alium transferre potest quam ipse habet, is one of very general application, and the rule in this country, to which of course there are exceptions, is, that the title of the true owner cannot be lost without his own free act and consent. 2 Kent's Com. 324; Kingsbury v. Smith, 13 N.H. 109; Hyde v. Noble, 13 N.H. 494; Farley v. Lincoln, 51 N.H. 580;---and see quite a forcible

discussion of the whole subject by Senator VERPLANCK, in Saltus v. Everett, 20 Wend. 267.

The idea that a lien may be created by a contract of the possessor of animals for their keeping, the owner being in no way privy to such contract, when no rights whatever, as against the owner, could be conferred or created by a contract of sale, seems anomalous, to say the least. Such a thing would, as it seems to me, be a violation of the fundamental rights of property guaranteed by the constitution; and if the legislature had undertaken by this act to create a lien, to arise on such a state of facts, I think it would be the duty of the court, as more than intimated by FOSTER, J., in Jacobs v. Knapp, 50 N.H. 82, to hold the act, so far, unconstitutional and void.

But I do not think any such intention is to be found in the statute. In giving this specific lien I think the legislature used the word in its legal and generally accepted sense, and that implies same privity between the owner, or person having the right of disposing of the goods, and him in whose favor the lien is claimed; and that by "entrusted" is meant entrusted by the owner or other person having authority to pledge the animals for such a purpose,---that is, to suspend the owner's right of possession until the charges are paid.

Cases where it has been held that a common carrier, who innocently receives goods from a wrong-doer, without the consent of the owner, express or implied, has no lien upon them for their carriage as against such owner, seem to cover the whole ground and more. 2 Redf. Railw. 171; Robinson v. Baker, 5 Cush. 137; Stevens v. B. & W. Railroad, 8 Gray 262. The recent English case of Threfall v. Boswick, Law Rep., 7 Q. B. 711^[*] has reference to an inn-keeper's lien, and, in my judgment, is not applicable to the case before us here.

The whole reasoning of FOSTER, J., in the carefully-considered opinion of the court delivered by him in Jacobs v. Knapp, is against the position of this plaintiff; and that case must, as it seems to me, be regarded as quite a direct authority upon the question raised in the present.

Upon these views it is obvious that the plaintiff is not entitled to recover, upon the facts stated in the case; and the ruling and charge of the court, under which his right to recover was made to depend upon whether or not the horses were entrusted to him to be boarded, without reference either to the defendant's right and interest in them as mortgagee, or the nature and extent of Robinson's right and title, cannot be sustained. CUSHING, C. J

was in the defendant, so that two questions arise in the case. 1. Had any lien been created as between the plaintiff and Robinson, and to what extent? 2. If so, was the defendant bound by it?

It appears from the case that Robinson employed the plaintiff to board the horses at seven...