
    Fanny Gilman vs. Frank Zirkin.
    Hampden.
    September 20, 1928.
    December 22, 1928.
    Present: Rugg, C.J., Pierce, Carroll, Wait, & Sanderson, JJ.
    
      Lien. Conversion. Replevin.
    
    One entitled to a lien upon a coat worth more than $20 for labor performed and materials furnished in its repair under an oral contract which did not fix the charges to accrue is not liable in an action for its conversion brought by the owner after he had sued out a writ of replevin for the coat, the writ had been served on the defendant, and the defendant still had refused to deliver the coat by reason of his lien; in such circumstances, G. L. c. 255, § 36, did not confer upon the owner the right of possession necessary to the maintenance of an action for conversion.
    Tort for conversion of a fur coat. Writ in the District Court of Springfield dated November 11, 1927.
    Material evidence and rulings by the judge at the trial in the District Court are stated in the opinion. The judge found for the defendant and reported the case to the Appellate Division for the Western District. The report was ordered dismissed. The plaintiff appealed.
    The case was submitted on briefs.
    
      L. C. Henin, for the plaintiff.
    
      G. A. Bacon, N. P. Wells, & S. W. Weltman, for the defendant.
   Wait, J.

The plaintiff sued in tort for the conversion of a fur coat. The defendant denied any conversion, and set up a lien for labor and materials in repairing the coat. The District Court of Springfield found that the defendant received the coat, which was worth more than $20, from the plaintiff for the purpose of repairing it; that he furnished materials and performed labor pursuant to the contract for repair which entitled him to a lien on the coat for $75; that the contract was oral and there was no writing stating the aggregate amount of charges to accrue; that the plaintiff disputed the charge and demanded the coat; that the defendant refused to give it up, claiming his lien; that the plaintiff sued out a writ of replevin, and the defendant, relying upon and asserting his lien, refused delivery to the officer who demanded the coat. It held that trover could not be maintained under these circumstances; and remitted the plaintiff to her suit in replevin. The Appellate Division dismissed a report. This appeal followed.

There is no merit in the appeal. The facts as found defeat the action of traver. There was no conversion in refusing delivery to the plaintiff while the defendant was entitled to maintain possession by virtue of his lien. Hardy v. Mun-roe, 127 Mass. 64. The right to maintain trover depends upon the right to immediate possession, and would not exist in the plaintiff until the lien was discharged. Wright v. Frank A. Andrews Co. 212 Mass. 186. The lien could have been discharged by a valid tender of the amount due, or by giving bond under G. L. c. 255, §§ 33, 34. There is no evidence of either.

At common law no action of replevin could have been maintained in such a case, Fowler v. Parsons, 143 Mass. 401; because the right of the plaintiff to immediate possession is as essential in replevin as in trover. By St. 1920, c. 590, now embodied in G. L. c. 255, however, a right to replevin is given where property exceeding $20 in value is detained under a claim of lien and the contract under which the claim arises does not specifically state in writing the aggregate amount of the charges to accrue for the services or materials to be furnished (§ 36).

The plaintiff contends that since the right to replevy rests upon the right to immediate possession, it must be that one given a right to replevy has a right to immediate possession, and, having such a right, can maintain trover. The argument is not sound. The right to immediate possession given by the statute is a different right from that given by the common law. The former depends upon compliance with the statute; the latter upon the termination of the lien by payment, or its equivalent, a valid tender. It cannot be supposed that the Legislature intended to put an end to the possessory right of a bailee holding a valid lien, by giving to the owner or bailor a right to sue in replevin. That owner or bailor must establish his right in the replevin proceedings. He does not establish his right to immediate possession simply by suing out his replevin writ and procuring its service; and is not, thereupon, entitled to proceed in tort for conversion as one whose right to immediate possession can no longer be questioned.

The judge was right in ruling, as he did in substance, that the statute giving a right to replevy in certain circumstances does not also, by implication, confer a right to sue in trover for conversion, if those circumstances occur. All his rulings were correct.

Order dismissing report affirmed.  