
    *Mount and others vs. W. & G. Williams.
    Where a contract is entered into, by which a party agrees to manufacture boards for another and to transport them to market at a stipulated price, and provision is made by the contract, giving the manufacturer a lien upon the boards which shall be delivered by him after'the delivery of a specified quantity; if the whole quantity of boards made is not sufficient to enable the manufacturer to deliver the specified quantity and satisfy his lien, and such inability is caused by the omission of the other party to supply him with a sufficient number of saw-logs out of which to manufacture boards, the common law lien attaches to the last quantity manufactured, notwithstanding the special agreement.
    This was an action of trover, tried at the Essex circuit in June, 1831, before the Hon. Esek Cowen, one of the circuit judges.
    The suit was brought for a quantity of boards and plank purchased by the plaintiffs of one Sewall Cutting, in July, 1827, at the price of $600,36, the lumber being at the time at Whitehall, part on shore and part in a canal boat; the whole in charge of one B. Myricfc. In the autumn of 1827, the lumber then being in the possession of the defendants, a demand was made of it by an agent of the plaintiffs, and the defendants refused to deliver it up, alleging that they had purchased it of Myriek. The defendants introduced a written contract between Cutting and Myriek, made in August, 1826, by which Cutting agreed to supply the saw mills of Myriek on Lake Champlain with a quantity of saw logs, not less in number than 3000, which Myriek agreed to saw into boards, plank, or other stuff, as should be directed by Cutting, and of the stuff fit for market, to transport to Troy, 25,000 pieces of boards, or plank, or other stuff equal to 25,000 boards, and deliver the same by the first day of July, 1827; and that he would transport the residue of the stuff as soon after the first of July as it was practicable for two canal boats to accomplish it. For the sawing and transportation, Cutting agreed to pay for common boards at the rate of $6,50 per 100 pieces, for common plank $8,50 per 100 pieces, and for other stuff in proportion, in the following manner : on the arrival of every *boat load of lumber at Troy, the agent of Cutting to pay one-third of the price stipulated on the quantity delivered, and so on until the delivery of the whole quantity of 25,000 pieces, when Myriek was to receive another third of the stipulated price, to be paid out of the avails of the first lumber which should, thereafter be delivered at Troy, and for securing the payment of which it was agreed that Myriek should have a lien thereon; and as to the residue of the lumber, Myriek, on its delivery, was to receive his compensation two-thirds in cash and one third in goods. After reading this contract, the defendants proved that Cutting delivered in all only 2681 logs, and it was admitted that the whole quantity of logs delivered would make about 27,000 pieces of stuff, of which the lumber in question was a part. The defendants offered to prove that all the logs furnished by Cutting were sawed, that the boards in controversy were the last parcel made from the logs, and that at the time of the sale by Cutting to the plaintiffs, Cutting was indebted to Myriek about $600 for the sawing ana transportation of the boards, including those in controversy. This evidence was rejected by the judge, and the jury, under his charge, found a verdict for the plaintiffs for the value of the lumber, with the interest thereof from the time of demand. The defendants move for a new trial.
    S. Stevens, for defendants.
    J. A. Spencer, for plaintiffs.
   By the Court,

Nelson, J.

The plaintiffs can be in no better situation in respect to this lumber than Cutting would have been had he brought the suit; and if he could not sustain the action, they cannot. It is well settled that Myriek at common law would be entitled to a lien upon the lumber in question, both for the labor and expenses bestowed in sawing the logs into boards, and for transporting them as a carrier to market, had there been no special agreement in the case; 4 Wendell, 296; 4 Carr. & Payn. 15; 2 Kent’s Comm. 634; and until such lien was discharged, an action of trover would not lie. 6 Wendell, 608, 9.

* Could Cutting, then, set up the special agreement between him and Myriek, and which he had failed to perform in points most essential to the rights of the latter under it, in destruction of this common law lien ? I think not. This right of the artizan or manufacturer is just and equitable, and is favored in the law. 3 Bos. & Pul. 492, per Heath, J. and cases above cited. Cutting having failed to comply with those parts or stipulations of the contract chiefly advantageous to Myriek, and which constituted in part the consideration for his engagements, it would be unreasonable to hold Myriek to a strict performance, and there is no principle of the law which requires it. Upon the well settled doctrine of this court, he would be justified in considering the agreement as rescinded, and might recover a compensation for his labor and expenses upon the quantum, meruit, 4 Wendell, 285 ; and if so, I am unable to discover any good reason against his disregarding the agreement, and falling back upon his common law rights in reference to other remedies, which in the above view would belong to him.

I have used the name of Myrick instead of the defendants, because the case was so put to the judge in the offer of evidence made and rejected ; and though it appears that the defendants said, when the lumber was demanded of them, that they had bought it of Myrick, the counsel for the defendants, on the argument, stated that the fact was not so, and if the judge had not decided against them, assuming that Myrick had not parted with the property by sale, they would have disproved it. This is probably the truth of the case, so far as the trial is concerned ; for it cannot be pretended that the defendants could hold the property by virtue of a sale from Myrick. His lien gave him no such power over it, and the very act would be a waiver or forfeiture of his lien. The property might have been delivered to the defendants for safe keeping, or in a way compatible with the continuance of the lien, 7 Cowen, 680. On this ground alone I think a new trial should be granted.  