
    William H. Tolhurst et al., App’lts, v. Joseph A. Powers, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1892.)
    
    1. Lien—Waives.
    Plaintiffs constructed a dynamo for which one Ball was to pay, and after all payments he remained indebted to them when the machine was ready for delivery. They delivered it to him, and he sold it to 0. on a contract that it should work successfully. It did not, and was sent back to plaintiffs to be altered. This they declined to do until defendant agreed to pay for the work, and he did so. Thereafter Balland defendant requiring a delivery oí the dynamo, plaintiffs undertook to retain possession till the original debt was paid. Held, that the primary lien of plaintiffs was lost by the first delivery, and they acquired no new one by reason of the repairs which were paid for.
    3. Same.
    The fact that Ball made no demand for the dynamo was no defense so long as there was a request to ship the machine and a shipment, Ball standing by and making no objection.
    Appeal from a judgment of the supreme court, general term, third department, affirming judgment on report of referee dismissing complaint.
    
      Davenport cb Hollister, for appl’ts; Drank S. Black, for resp’i
    
      
       Affirming 39 St. Rep., 581.
    
   Pinch, J.

We agree with the prevailing opinion of the general term that there was no consideration to support the promise of Powers to pay Ball’s debt to the plaintiffs. The latter originally constructed a dynamo for which Ball became indebted to them, and after all payments he remained so indebted when the machine was ready for delivery. The builders of course had a lien upon it for the unpaid balance, but waived and lost their lien by a delivery to Ball without payment. He, being then the owner, and holding the title free from any incumbrance, sold the dynamo to Crane on a contract apparently contingent upon the successful working of the machine. It did not work successfully, and was sent back to plaintiffs to be altered, with a view of correcting its imperfections. At this point occurred the first intervention of the defendant, Powers. He had not then obtained, so far as the case shows, any interest in the machine, and the complete title was either in Crane or Ball, or in both; but when the plaintiffs hesitated about entering upon the new work until their charges for it should be made secure, Powers agreed to pay them.

The true character of that promise is immaterial, for, when the work was done, Powers did pay according to his contract. Thereafter, Ball and Powers requiring a delivery of the dynamo, the plaintiffs undertook or threatened to retain the possession till the original debt should be paid. .That they had no right to do. Their primary lien was lost by the delivery, and they acquired no new one by reason of the repairs which were paid for. Such refusal to surrender the possession was an absolute wrong without any color of right about it. After demand, their refusal was a pure trespass, and according to their own evidence the sole consideration for the promise which they claim that Powers made to pay the old debt of Ball was their surrender of possession. To that they were already bound, and parted with nothing by the surrender. They gave up no right which they had against any one, but extorted the promise by a threat of what would have been, if executed, a wrongful conversion. Doing what they were already bound to do, furnished no consideration for the promise.

It is said, however, that Ball made no demand, and until he did the plaintiffs were not bound to deliver the possession, and that the delivery was to Powers and not to Ball. But there was certainly a request to ship the machine and so part with the possession, and both the request and the shipment were with the concurrence of Ball. It was that very request that brought up the subject of the old debt, and Ball stood by plainly assenting, at least, by omitting any dissent or objection. The shipment to Powers by name made it none the less a delivery to Ball, whose concurrence is explicitly found. Surely after what happened the latter could not have maintained an action for conversion on the ground that there had been no delivery to him. The undisputed fact is that the plaintiffs were seeking to withhold a delivery to the owner without the least right of refusal. There was no harm to plaint-.’ iffs and no benefit conferred on Powers. The former parted with nothing of their own, and the latter gained nothing, for the shipment to him was a delivery to Ball, the owner, since made with his concurrence, and Powers obtained no right or interest in the property as the result of the delivery. He simpty took it, if he took at all, which is doubtful, as the agent or bailee of the owner, and acquired no right in it until a later period. Until the mortgage made subsequently, his advances for repairs constituted only an unsecured debt against Ball. The turning point of the appellants’ argument is the unwarranted assumption that the plaintiffs agreed to deliver and did deliver the dynamo to one whom they knew not to be the owner without the assent of Ball, who was the owner, but who nevertheless stood by and made no objection. Ho fair construction of the evidence will sustain the appellants’ theory.

The judgment should be affirmed, with costs.

All concur.  