Smith v. Bergstresser
| Decision Date | 23 September 1914 |
| Citation | 26 Idaho 322,143 P. 402 |
| Parties | FRANK J. SMITH, Appellant, v. W. A. BERGSTRESSER, Respondent |
| Court | Idaho Supreme Court |
CLAIM AND DELIVERY-SALE OF PERSONAL PROPERTY-AGENT FOR SALE OF PERSONAL PROPERTY NOT IN HIS POSSESSION NOT A BROKER-LIENS PROVIDED FOR BY SEC. 3446, REV. CODES, DO NOT APPLY IN THIS CASE-EVIDENCE-SUFFICIENCY OF-COMMON-LAW LIENS.
1. Where an agent is employed to sell certain personal property but is not given possession thereof and has no authority to fix the price, determine the terms, close the sale of the same, or receive the purchase price, said agent does not have a lien upon the note and mortgage offered as a part of the purchase price of said personal property and delivered by the purchaser to the owner of said property in connection with the sale thereof, then by him placed in the hands of the agent simply and only to have him examine the same as to their value, see if the land mentioned in the mortgage is properly described therein, and determine from the abstract of title whether there were other liens or encumbrances upon it; the agent does not have a lien upon said note and mortgage for a commission for the sale of said personal property only.
2. Under the provisions of sec. 3446, Rev. Codes an agent who sells personal property of which he does not have possession and upon which he has rendered no service to the owner thereof, by labor, or skill, employed for the protection, improvement, safe-keeping, or carriage thereof has no lien for the purchase price, or any part thereof which may come into his hands in connection with such sale.
3. Held, that under the evidence in this case, respondent is not entitled to a lien upon the note and mortgage described in the complaint.
APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Chas. P. McCarthy, Judge.
Action in claim and delivery to recover possession of a certain note and mortgage described in the complaint, of the alleged value of $ 1,800. Modified.
Costs awarded to the appellant.
Respondent cannot claim a statutory lien, because he does not come within that law, and does not allege that the property was delivered or consigned to him for sale; nor to perform labor or skill, or expend money upon the identical property detained. (Rev. Codes, sec. 3446; Mendilie v. Snell, 22 Idaho 663, 127 P. 550, 43 L. R. A., N. S., 965.)
Respondent cannot establish a common-law lien upon the property of the appellant detained by him.
"A particular lien at common law is a right to retain the property of another on account of labor employed or money expended on that specific property." (19 Am. & Eng. Ency. of Law, 2d ed., 8; 1 Jones on Liens, p. 26; 2 Bouvier's Law Dictionary, 227; Scott v. Mercer, 98 Iowa 258, 60 Am. St. 188, 67 N.W. 108; Mechem on Agency, sec. 685.)
Respondent cannot claim a common-law lien as a factor nor as a broker, because he did not have delivered to him the possession of the goods and merchandise for sale, nor was the property consigned to him for sale. (Mechem on Agency, sec. 980; Clark & Skyles on Agency, secs. 745, 822; Story on Sales, 91; Slack v. Tucker, 23 Wall. 321, 23 L.Ed. 143; Barry v. Boninger, 46 Md. 59; Peterson v. Hall, 61 Minn. 268, 63 N.W. 733.)
Smead, Elliott & Healy, for Respondent.
An agent has a lien on the papers or property of his principal to secure payment of his compensation. (Gresham v. Galveston Co. (Tex. Civ. App.), 36 S.W. 796; Dowell v. Cardwell, 4 Saw. 217, 7 F. Cas. No. 4039; Vinton v. Baldwin, 95 Ind. 433; Jones on Liens, sec. 422; Byers v. Danley, 27 Ark. 77.)
There exists a particular right of lien in the agent for all his commissions, expenditures, advances and services, (Mechem on Agency, sec. 684; Barry v. Boninger, 46 Md. 59, Richards v. Gaskill, 39 Kan. 428, 18 P. 494; Carpenter v. Monsen, 92 Wis. 449, 65 N.W. 1027, 66 N.W. 692; Peterson v. Hall, 61 Minn. 268, 63 N.W. 733.)
"Where an agent has a lien on property for his security, the general owner cannot replevin against him for it until the lien be discharged. " (Newhall v. Dunlap, 14 Me. 180, 30 Am. Dec. 43; Matthias v. Sellers, 86 Pa. 486, 27 Am. Rep. 723.)
In this case an action of claim and delivery was brought by appellant against respondent to recover the possession of a note for $ 1,800 and a mortgage upon certain real property in Canyon county, Idaho, given to secure the same.
On or about October 1, 1912, the appellant, Frank J. Smith, sold to one Dan Barnidge a certain stock of merchandise, saloon fixtures and liquors, located at 702 Main St., Boise, Idaho. This note and mortgage were a part of the purchase price of said personal property, and at the time of the commencement of said action they were in the possession of the defendant, and he admitted that the plaintiff was the owner of them. The defendant filed his answer to the complaint and affidavit of the plaintiff, denying certain allegations therein but admitting the sale of the personal property to said Dan Barnidge by plaintiff, that said note and mortgage were part of the purchase price of the same, and alleged therein that they were delivered to him by plaintiff for his examination in connection with the abstract of title to the real property described in said mortgage.
Said defendant, as a further answer, defense and cross-complaint, among other things, alleged that "on or about the 28th day of August, 1912, the said plaintiff, Frank J. Smith, entered into an agreement with the said defendant, W. A. Bergstresser, wherefor, in the consideration of $ 200 to be paid by the said plaintiff to the said defendant, the said defendant agreed to negotiate the sale of, sell and dispose of a certain stock of merchandise and fixtures, consisting of intoxicating liquors and saloon fixtures, and entirely of intoxicating liquors and saloon fixtures, described in the said complaint herein, and to draw all contracts for the transfer of said property and agreements to transfer the same, make all invoices, examine all instruments and perform all other services as an attorney at law in connection with the said sale and transfer." This is the contract upon which issue was joined, for the plaintiff in his reply denies making it or any contract with defendant for the sale of said property, or for any other purpose whatever.
The defendant further alleges in said answer that he effected a sale of said personal property to said Dan Barnidge for the purchase price of $ 3,500; that $ 1,700 thereof was paid in cash and said note and mortgage for $ 1,800 were turned over to the plaintiff as the remaining part of said purchase price; and that by reason of his services in effecting said sale the plaintiff became indebted to him in the sum of $ 200, and asked that it be adjudged and decreed by the court that he have a lien upon said note and mortgage and the possession of them until the amount of $ 200, as above stated, for said services, be paid to him. All of the material allegations of this answer were denied by plaintiff.
Upon the issues thus joined, the cause was tried before the court with a jury, and the jury returned the following verdict:
"We, the jury in the above-entitled action, find that the defendant is entitled to a lien upon the note and mortgage described in the complaint for the sum of $ 175, and is entitled to the possession of the same until said sum is paid him by the plaintiff, and so we find for the defendant."
The court, in accordance with this verdict, entered judgment against the plaintiff, and ordered, adjudged and decreed that the defendant, W. A. Bergstresser, do have and has a lien upon the note and mortgage described in the complaint in this action for the sum of $ 175, and that he is entitled to the possession of the same until said sum is paid him by the plaintiff with interest thereon at the rate of seven per cent per annum from the date of said judgment until paid and for costs and disbursements of the action. From this judgment the plaintiff appeals.
A number of errors have been assigned by the appellant, which, under our view of the case, it will not be necessary to pass upon, for the main and vital question presented by this appeal is as to whether or not the defendant had a lien on the note and mortgage for the services he had rendered plaintiff, and a decision of this question will dispose of the case. But in order to decide this question, it will be necessary to consider the first and second assignments of error as set forth in appellant's brief, for these two assignments of error are so connected that they must be considered together.
The case is somewhat peculiar as presented to this court, in the fact that the testimony at the trial in the court below did not keep well within the issues raised by the pleadings. The contract alleged in the defendant's affirmative defense or cross-complaint is materially different from the one he testified to as having been made with the plaintiff in regard to the sale of said personal property. The contract set out in his answer is that defendant agreed with plaintiff to negotiate the sale of and sell the property described in the complaint, and also to draw the contracts for the transfer of said property and agreements to transfer the same, make all invoices, examine all instruments, and perform all other services as an attorney at law in connection with the sale and transfer of said property. But in his testimony, at page 97 of the transcript, when asked to give the terms of the employment he made with plaintiff, he answered: "The terms of employment were when we got down to the sale that he was to pay five per cent of the valuation of the stock, and h...
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