
    Stillings v. Gibson.
    One who contracts to haul and deliver lumber on the cars at an agreed price, to be paid when it is sold in market and tho avails received, has no lien thereon at common law for his labor.
    Tbover, for two car-loads of lumber. In the winter of 1881-2 the plaintiff was engaged hauling lumber for Thompson & Ricker from their mill in Pinkham’s Grant to Glen Station on the P. & O. Railroad, a distance of about twelve miles, and loading it on the ears. For hauling, loading, and binding on the cars, he was to receive §1 per thousand, to be paid upon the return of sales. February 8, 1888, the mill of Thompson & Ricker was burned, and thereupon they were sued, and failed. At that time there were at the Glen Station two cars nearly loaded with lumber, part of which was hauled by the plaintiff, and part by other parties. At the time of the fire Thompson & Ricker owed the plaintiff more than $1,000 for hauling lumber as above, and at the same time were owing the defendant $485.78 for hay and other supplies used in their business. The next day after the fire Ricker gave the defendant a written order upon the station agent at Glen Station, as follows:
    “ Feb. 9, 1883. Mr. Burnell, Dear Sir: I bave sold the two car-loads of lumber at your station to James L. Gibson, of North Conway. Please fix up the cars and send on bis order wherever he desires them sent, and oblige.”
    
      February 12, tbe plaintiff went to tbe station and ordered tbe agent, wbo was tben completing the loading and binding, not to send tbe cars away, and claimed the lumber to be bis, and on tbe same day notified the defendant of bis claim to tbe lumber. These notices were disregarded., Tbe lumber was sent away tbe next day under the defendant’s instructions, and tbe proceeds of tbe sale applied on bis debt against Thompson & Ricker. Tbe claim of tbe plaintiff was that be bad a common-law lien upon tbe lumber for hauling and loading it until be voluntarily surrendered tbe possession. •
    6r. W. M. Pitman and T. J. Smith, for tbe plaintiff.
    
      Osgood and Quarles, for tbe defendant.
   Carpenter, J.

Tbe plaintiff claims by virtue of a lien at common law, and not under tbe statute. It appears, from the reported facts and tbe verdict of tbe jury, that tbe plaintiff contracted with tbe owners of tbe timber to haul and load it upon tbe railroad cars at a certain price per thousand feet, to be paid to him “upon tbe returns of"sales,” — that is to say, upon tbe receipt by tbe owners of tbe avails of tbe sales in market. It does not appear bow long a credit was thus given by tbe plaintiff, nor is it material. A lien at common law is tbe right of detaining tbe property of another until some claim is satisfied: possession, actual or constructive, is essential to its existence. Hence, one wbo is bound by bis contract to deliver to tbe owner property upon which be has expended labor, before tbe stipulated time of payment arrives cannot be entitled to a lien. The obligation to deliver before payment negatives tbe right to detain until payment. Stoddard Manufactory v. Huntley, 8 N. H. 441, and cases cited; Pinney v. Wells, 10 Conn. 104; Pichman v. Woods, 6 Pick. 248; Stickney v. Allen, 10 Gray 352; Raymond v. Tyson, 17 How. (U. S.) 56 ; Chase v. Westmore, 5 M. & S. 187 ; Crawshay v. Homfray, 4 B. & A. 50 ; Alsager v. Pock Company, 14 Mees. & W. 794; Foster v. Colby, 3 H. & N. 705.

. Inasmuch as tbe plaintiff bad no lien upon tbe'timber before -delivery, it is immaterial whether that part of it for which be brings suit bad or bad not been delivered at tbe time when be asserted tbe lien, and for tbe same reason no question upon the right of stoppage in transitu arises.

Whether under tbe statute (G. L., c. 139, s. 13) a lien may exist notwithstanding credit is given need not be considered, because tbe plaintiff at tbe trial made no claim under tbe statute, but relied wholly upon a lien at common law.

Judgment on the verdict.

Blodgett, J., did not sit: tbe others concurred.  