
    JOHN MURPHY, Plaintiff and Respondent, v. JOSEPH H. LIPPE, Defendant and Appellant.
    I. Lien, Waiter of.
    1. May he waived by any special agreement giving credit, or by taking security.
    n. Verdict.—Practice.
    1. Presumption.
    
    
      a. Where there are several disputed facts in the case, the jury in rendering a general verdict are presumed to have passed on them all, although one may not have been submitted to them as a distinctive question.
    
    
      2. Intendment.
    
    
      a. Every intendment must be in favor of the correctness of the verdict. HI. Promissory Note.
    1. What does not constitute afaiktre of consideration, a. The refusal to deliver an article for the purchase-money of which the note was given and received in payment.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.
    
      Decided May 3, 1873.
    Appeal from judgment, and order denying a motion for a new trial.
    The action was to recover the possession of a carriage, which it was alleged -the defendant had wrongfully detained from the plaintiff.
    The answer admitted the possession of the vehicle, and alleged that the defendant had made repairs to it at the request of the plaintiff, which he had not paid for, and for which the defendant had a lien upon the carriage.
    The plaintiff testified that it was agreed that credit should he given for the work, and that the hill for repairs should he arranged hy the plaintiff’s giving four promissory notes, three for $75 each, and one for $62.50 (said notes "being payable respectively in two, three, four, and five months), and a mortgage on the carriage. The plaintiff at that time held the note of the defendant for $62.50, which the plaintiff testified, he gave to and it was received by the defendant in lieu of plaintiff’s note of same amount, and as part payment for the work on the carriage. The three notes of plaintiff for $75 each,' and the defendant’s note for $62.50, covered the entire bill for repairs. The mortgage was to cover the four notes, and was executed by the plaintiff, and delivered to the defendant, as were also the three notes for $75 each, and which three notes were afterwards all paid, and the amounts received by the defendant.
    The defendant testified that he and the plaintiff came to “an agreement, and he accepted the bill, and he requested me to draw notes and the mortgage, and I drew three notes for $75 each, and one note for $62.50. When they were drawn up he signed the three notes for $75 each and the mortgage, and I said “there is another note for $62.50 ; you ought also to sign thathe said no, he would not, and he drew from his pocket a note which I had given him, and laid it before me, and said, “ There is a note which I hold against you, and I want you to take that.” I replied, “I cannot accept that note, for the simple reason that you have the goods for which I gave that note in your possession yet, and that note is not due, and I cannot give you credit for a thing that you have in your possession, and a note that is not due when you hold the goods ; ” I made the remark, “ do you sign this note, and I will return this note to you when you send me the phaeton and the note ; but I do not feel satisfied to give you your coupé and receipt my bill in full until.I see what I get for my note ; ” thereupon Mr. Murphy left the shop and returned with the sheriff and took possession of the coupé.”
    He also testified that he retained the mortgage, and three notes which were paid, and also afterwards received the phseton, the purchase of which from the plaintiff had formed the consideration for the note for $62.50.
    There was evidence tending to show that when the defendant sent for the phaeton, its delivery was refused until a lien for storage due to a warehouseman was paid.
    The phaeton had not been delivered when this action was commenced.
    All the evidence in relation to the refusal to deliver the phaeton and the claim for storage was conflicting, as was also the evidence of the defendant’s agreement to take Ms own note in part payment.
    The court submitted the case to the jury upon this conflicting evidence, charging them in substance that if the defendant agreed to accept, and did accept and receive the three notes of plaintiff, and a return of his own note, as payment for the repairs, it discharged the lien upon the carriage.
    The jury found for the plaintiff.
    The defendant moved for a new trial upon the judge’s minutes, wMch motion was denied.
    The defendant appealed from the judgment and order.
    
      George A. Black, attorney, and of counsel for appellant,
    urged:
    I. In replevin, in the deUnet, the rights of the parties are to be determined by the condition of things existing at the time of the demand and refusal.
    If the refusal was rightful, the defendant is entitled to succeed.
    “ Nothing that transpired after the commencement of “ the action can avail to give an action to the plaintiff” (Cook v. Gregg, 46 N. Y. 444).
    II. By the undisputed evidence, tlje defendant was right in refusing to give up the coupe (Mount v. Williams, 11 Wend. 77).
    
      His own note, offered him in payment, was based on the purchase of property which remained in possession of the plaintiff, and which he refused on defendant’s demand to deliver.
    This note was still held by the original parties, and the failure of consideration rendered it worthless, and defendant was right in refusing it.
    The defendant was entitled to a verdict, and the judgment and order denying motion for a new trial should be reversed, and a new trial granted.
    
      Henry Cooper;, attorney and of counsel for respondent,
    urged:—I. The plaintiff claimed on the trial that the hack was delivered to the defendant for repairs, the defendant agreeing to give the plaintiff credit therefor.
    
      (a) In the evidence, defendant expressly testifies that he agreed to gine plaintiff credit for the worJc.
    
    
      (b) The evidence shows that plaintiff in pursuance of such agreement gave his promissory notes secured by mortgage on the property in question, as security for his indebtedness to defendant.
    (c) The evidence shows that these notes were all paid by plaintiff as they matured.
    Defendant also admits the payment; and that he kept the mortgage as security until the notes were all paid.
    II. If defendant did not at the time of the execution and delivery of the mortgage and notes intend to accept his own note of $62. «50 in payment, he should have returned it, together with the other notes and the mortgage plaintiff gave as security. Plaintiff testifies that he gave this note in payment, and that defendant agreed to receive it in payment ;■ and defendant admits that he received the phaeton from plaintiff, thus receiving the consideration of the note of $62.50, and making the full amount due him as stated in the mortgage.
    
      The notes and mortgage were executed and delivered by plaintiff, and accepted by defendant in payment, and such acceptance and credit divested defendant’s lien for work performed, and plaintiff’s right of action was complete.
    III. The jury by their verdict found, as a matter of fact, that a credit was given to plaintiff, and that the note of 362.50 was given in part payment of his indebtedness, and having so found, their verdict is final.
    The rule of damages was correctly stated by the court (Sedgwick on the Measure of Damages, 5th ed. p. 577, and cases cited, p. 581).
    The judgment should therefore be affirmed.
   By the Court.—Monell, J.

The questions in dispute in this case were given to the jury upon very conflicting evidence, and I can see no reason for disturbing their verdict.

The alleged agreement that the defendant should receive and did receive the three notes of the plaintiff, and his own note held by the plaintiff as payment, has been found by the jury, and as, found was sufficient to operate as a discharge of the defendant’s lien upon the carriage. A mechanic may waive a lien for work done by any special agreement giving credit (Baily v. Adams, 14 Wend. 201), or by taking security (Cowell v. Simpson, 16 Ves. 275).

Taking, therefore, the finding of the jury as to the agreement as settling the facts, the lien of the defendant had ceased when the demand was made for the carriage, unless, as was claimed by the appellant, the note of the defendant was invalid for want of consideration. It was ' given for the price of a phaeton which had been sold by the plaintiff to the defendant, but which the defendant claimed had not been delivered to him, delivery having been refused until certain charges for storage had been paid.

The evidence in respect to the refusal to deliver was conflicting, and although the learned judge does not appear to have submitted that as a distinctive question to the jury, it was nevertheless in the case, and it must be presumed was passed upon by the jury. And as the verdict was a general verdict for the plaintiff, it must be presumed that the jury found there had not been any refusal by the plaintiff to deliver the phaeton. There was no exception to the charge, or any request made to submit any specific question of fact to the jury, and every intendment must be in favor of the correctness of their verdict.

But the refusal to deliver the carriage, even if it had been so found, would not have been such a failure of consideration as would have invalidated the note after it came back to the defendant. It had when given operated as a payment for the phaeton, and the defendant could at any time afterwards have recovered the possession of the vehicle. It was at most a mere failure to receive the benefit of the sale, and not a failure of the consideration for the sale.

I think the judgment and order should be affirmed, With costs.  