
    Seebaum v. Handy et al.
    
      Lien of feed-stable keeper wider 2§ 3212 and 3213 Rev. Stats.— Waiver of,
    
    1. Tbe lien given the “person” by §2 3212 and 3213, Revised Statutes, who furnishes feed and bestows care on a horse or other animal therein named, is a right in the nature of a common law lien to retain possession as a security for the charges; and may be waived by the “person” voluntarily parting with the possession to the owner without the charges being paid.
    2. The plaintiff below was the keeper of a feed-stable in the city of Cincinnati. The owner of a horse, who lived out of the city, was in the habit of leaving it with the plaintiff, when in the city, to be fed and cared for as long as suited liis-convenience ; when called, for, the horse would be delivered to the owner, and not returned, except at such intervals as suited the owner’s convenience when again in the city. The plaintiff kept an account in which the owner was charged with the feed and care of the horse from time to time, as it was left with him. On or about the 12th of November, 1884, the horse was called' for and delivered to the owner, as usual; the charges for feed and care then amounted to over a hundred dollars. Shortly afterward the owner was killed by being thrown from his buggy. And some time after that, the horse was driven to the city by a brother of the deceased and left at another feed stable, from which it was replevined by the plaintiff in an action against certain children of the deceased, who claimed to be the owners of the horse.
    
      Held: That the delivery of the horse was a voluntary one, and the lien waived. Whether an express or implied contract to return the animal would have varied the rights of the parties, is not determined ; for the reason, that no express contract was claimed, and none can be implied from the circumstances of this case.
    (Decided November 19, 1889.)
    Error to the Circuit Court of Hamilton County.
    The action below was replevin for a horse. It was commenced in a justice’s court, and appealed to the common pleas. The petition averred a special ownership in the plaintiff by virtue of a lien for feeding the horse and paying the expense of shoeing for more than ten days before the commencement of the action. The answer is in substance a general denial of the petition. The case was tried to a jury upon the issues joined, which found for the plaintiff, and assessed his damages for the detention, at one cent. A motion for a new trial was then made' on the ground of a misdirection of the court to the jury and a refusal to charge as requested. The motion was overruled and judgment entered on the verdict. The defendants tendered their bill of exceptions, which was signed and made a part of the record.
    The bill sets forth all the evidence offered as to the existence of the lien, the charge of the court, and the instructions which wrere asked and refused. The evidence offered consisted of the testimony of the plaintiff and the items of his account, and is as follows:
    
      Plaintiff’s testimony — I keep a livery stable on Seventh street in Cincinnati, and have done so for many years.
    Truman B. Handy, the father of the defendants, was in the habit for several years of putting up his horses at my stable; he paid me all! his bills up to August 1, 1883. After that he paid me nothing on account of stabling, shoeing, feeding or expense of any kind of caring for the horse “ Jim,” which was replevied in this action.
    This account '(marked “A” and hereto attached), is a true ■copy of my account against said Truman B. Handy up to November 1, 1884.
    He brought his horse to my stable five times between November 1, 1884 and November 12, 1884, for which I charged $2.00 in addition to what is shown on this account.
    Mr. Handy’s habit was to drive into the city in the morning, drive his horse and buggy to my stable, deliver them to some employe about the stable and go about his business. In the evening, or when he wanted to use the horse, ho would ■come to the stable and order his horse, and some one of my employes would then harness his horse and give him the reins, and he would then drive away. During the day I would have the horse fed and watered, and give him whatever attention he required. This was the usual course of business between us. I charged 40 cents a day for the feed and care of the horse when left at my stable in this way. I made out my bills every month, and my account shows at the beginning of each month the amount of my bill for the preceding month; for instance, the charge of $1.20 June 1, for stabling during May, 1884, shows that Mr. Plandy stabled his horse there three days during that month. During the month of June he left his horse at the stable in the usual way twice, as shown by the charge of July 1. And during the month of July the horse was left there but one day, as shown by the 'charge of August 1, in said account. From the middle of August to the first of November, said horse was at my stable all the time, and I charged $20.00 a month.
    The last time the horse was at my stable before Mr. Handy’s death, was, I think, November 12, 1884. On that occasion when Mr. Plandy called for him he was harnessed and delivered to Mr. Plandy in the usual way. Mr. Handy was living in Clifton at the time this bill was made.
    Mr. Handy was killed, so it was reported, on the 15th day of November, by being thrown from his buggy.
    On the 24th of November, 1884, this horse w’as driven into town by Charles E. Handy, defendant’s brother, and was. left by him at the stable of "William H. Bristol, on Walnut street, and was taken from there by proceedings in replevin in this case.
    On one occasion I was pressing Mr. Handy pretty hard to pay up his bill. He was a little irritated, and said : “ Dammit, if you are afraid you won’t get your pay you can sell the horse,” I answered : “ Oh no, Mr. Handy, I would not do that.”
    Plaintiff’s Account.
    
      “ Exhibit A.”
    
    Mr. T. B. Handy, Dr.
    
    
      To R. Seebaum.
    1883.
    August 1 — To stabling during July..................$ 6 00.
    “ 4 — To horseshoeing........................... 2 00
    “ 25 — To a load of sawdust....................... 3 00
    September 1 — To stabling during August.............. 2 60
    
      September 28 — To cash for bringing back horse and
    buggy neat............................... 5 00
    October 1 — To stabling during September........... 7 20
    “ 1 — To°horseshoeing............................ 5 00
    November 1 — To stabling during October.............. 12 55
    w 1 — To two loads of sawdust.................. 6 00
    December 1 — To Stabling during November........... 11 00
    
      “ 1 — To horseshoeing............................. .2 00
    1884.
    January 1 — To stabling during December........... 13 60
    
      “ 1 — To horseshoeing............................. 3 75
    February 1 — To stabling during January.............. 18 75
    
      “ 1 — To horseshoeing............................. 3 50
    March 1 — To stabling during February............ 13 75
    
      “ 1 — To horseshoeing............................ 6 30
    April 1 — To stabling during March............... 12 90
    
      “ 1 — To horseshoeing ........................... 2 00
    May 1 — To stabling during April.................- 3 60
    “ 1 — To horseshoeing............................. 2 00
    June 1 — To stabling during May.................. 1 20
    July 1 — To “ “ June................. 80
    August 1 — To “ “ July ................. 40
    September 1 — To “ “ August.............. 10 65
    October 1 — To “ “ September ......... 20 00
    
      “ 1 — To repairing harness....................... 45
    November 1 — To stabling during- October.............. 20 00
    $197 10
    Upon this state of the proof the court, among other things, charged the jury:
    “ If you should find that it was the uniform manner between these parties, that Mr. Handy would bring this horse to the stable, leave him there for a day, or part of the day, and take him away again, bring him the next day, or probably the next two or three days, without any definite arrangement as to time, there would arise an implied contract, when Mr. Handy took the horse away under these circumstances, that he would return him again. In other words, there would not be under these circumstances, such a voluntary parting with the possession of the hoi’se on the part of the plaintiff, in the case, as to work a waiver of the lien under these circumstances.”
    This was excepted to at the time, as were, also, other parts of the charge founded on substantially the same view of the law, and are, therefore, not inserted here. Nor, is it necessary to set forth the instructions asked and refused, as they are all contradicted by the part of the charge above given.' The case turns upon this part of the charge.
    The judgment was reversed on error by the circuit court, and remanded for further proceedings.
    
      Burch & Johnson, and H. Marckworth & J. H. Marckworth, for plaintiff in error.
    Under the provisions of the Revised Statutes, (sections 3212 and 3213), a livery stable keeper who has furnished feed and care for a horse, has a lien therefor, which is not defeated by the voluntary delivery of the possession to the owner in the ordinary course of business.
    At common law, a livery stable keeper had no lien; 2 Kent’s Com. 630, note d. “ By passing the statute in question, the legislature gives the livery stable keeper a lien, notwithstanding the fact that he does not at all times have possession of the animal.” 10 Law Bull. 386. The legislature of Pennsylvania passed a law almost identical with ours; Penn. Laws, 1807, p. 162. The Supreme Court of that state, in Young v. Kimble, 23 Pa. St. 195, construes that statute in harmony with our view. The Tennessee statute, which is, in effect, the same as ours, has been similarly construed. Caldwell v. Tutt, 10 Lea 258.
    We also call the courts attention to the following cases, Munson v. Porter, 63 Ia. 453; Smith v. Morton, 60 N. H. 511.
    The act being remedial, must be liberally construed. Eckert v. Donahue, 9 Daley, (N. Y.) 214; Swan’s Statutes, 615.
    
      J. F. Baldwin, for defendants in error.
    Defendants in error controvert the proposition of plaintiff in error, and claim that a livery-stable keeper, who has become entitled to a lien on a horse for food or care under the provisions of secs. 3212 and 3213 of our Revised Statutes, loses his lien when he voluntarily delivers the possession "of the horse to the owner, without any agreement for its réturn, provided the horse is never voluntarily returned.
    Now, what is a lien ? Hammond v. Barclay, 2 East. 227; Gladstone v. Bierly, 2 Merivale, 401; Bouvier Law Dic., title— Lien; Smith’s Mer. Law, title — Lien, 688; 2 Kent’s Com. 634. Possession is necessary to a lien. 2 Kent’s Com. 638, 639; Smith’s Mer. Law, 697; 2 Dane’s Abr. 262; Sweet v. Pym, 1 East. 4; Lickbarrow v. Mason, 6 East. 21; Haywood v. Warring, 4 Camp. 291.
    In adopting our statute in 1873, the legislature did not undertake to define the word “ lien,” but used it as if it had a settled and well understood meaning. It was well understood in Ohio, that possession of a chattel was essential to a lien thereon. Jordon, Ellis & Co., v. James, see 5 Ohio, 89. The legislature, therefore, must be presumed to have used that word according to its legal meaning, then well understood and established in this state.
    Moreover, the use of the word “ retain,” in sec. 3213, shows affirmatively that the legislature presumed the stable keeper to be already in possession. For how could he retain that of which he was not possessed?
    When Seebaum gave to Handy the possession of the horse, the last time he was at the stable, he must have decided to look to Handy personally for the amount of his bill, and not to the security of the horse. Vinal v. Stafford, 139 Mass. 126; Perkins v. Boardman, 14 Gray, 81; Papineau v. Wentworth, 136 Mass. 543; Forth v. Simpson, 66 Eng. Com. Law, 680.
    There was no implied contract. When a person has patronized a stable or a hotel for many years, there is a probability that he will continue to do so, and this probability of future patronage constitutes the “good will” of the stable or the hotel; but it was clearly erroneous to say that this probability amounts to an “implied contract” or any duty or obligation to continue the patronage.
   Minshall, C. J.

Whether the instructions of the court to the ]ury stated the law applicable to the case made by the tendency of the proof, depends upon the nature and character of the lien given by sections 3212 and 3213, Rev. Stats., to a person who furnishes food and care for any horse ” by virtue of an agreement with the owner, .to secure the payment of the same.

These sections are as follows :

Sec. 3212. A person who feeds or furnishes food and care for any horse, mare, foal, filly, gelding, mule, or ass, by virtue of any contract or agreement with the owner thereof, shall have a lien therefor, to secure the payment of the same, upon such animal.”

Sec. 3213. A person feeding or furnishing food and care for any horse, mare, foal, filly, gelding, mule, or ass, shall retain such animal for the period of ten days, at the expiration of which time, if the owner does not satisfy such lien, he may sell such animal at public auction, after giving the owner ten days’ notice in a newspaper of general circulation in the county where the services were rendered; and after satisfying the lien and costs that may accrue, any residue remaining shall be paid to the owner.”

It seems to us very clear upon a view of these sections, that the intention of the legislature was, in enacting them, to give to the person furnishing such food and care a lien upon the animal as a security for the food furnished and care bestowed, with the incidents of a lien at common law in analogous cases. The first section gives the “ lien,” and the next one provides the mode of maintaining and enforcing it: The “ person ” shall “ retain ” the animal for ten days, and if, at the expiration of that time, the owner does not satisfy the lien,- he may, on giving the requisite notice, sell it at public auction.

The nature and incidents of a common law lien of this kind are well settled : It is a right to retain property until certain claims against it are satisfied; and possession is not only essential to its creation, but also to its continuance. Where the party voluntarily parts with the possession of the property upon which the lien has attached, he is divested of his lien. 2 Kent Com. 638; Smith’s Mercantile Law, 697; Sweet v. Pym, 1 East. 4; Lickbarrow v. Mason, 6 East. 21; Hammond v. Barclay, 2 East 227 ; Jordan v. James, 5 Ohio R. 89, 98. In McFarland v. Wheeler, 26 Wend. 473, it is said, that “ the very definition of a lien as the right to retain, indicates that it must cease when the possession is relinquished. This principle, so clearly founded in reason and so congruous to public utility and the convenience of trade, is supported by the uniform testimony of the decisions.”

The right to sell the animal upon notice and apply the proceeds to satisfying the lien, does not affect its classification with similar common law liens; it only gives a plain and simple remedy for enforcing the lien.

The evidence .tended to show, and the charge of the court was applicable to, a case where the owner of a horse temporarily leaves it with the owner of a feed-stable to be fed and cared for; there is no definite arrangement as to time; it may be for less or more than a day; this depends upon the convenience of the owner who resides out of the city; when he wishes to return home, the horse is delivered to him, and the feed and care is charged to him in an account by the keeper. There is no express agreement at any time that the horse is to be returned Now how, under these circumstances, it can be inferred, as the court charged the jury, that there is an implied contract on the part of the owner to return the horse, we are unable to see. The owner is, for the time, simply a customer of this particular feed-stable. The keeper may expect that when the owner again comes to the city he will again patronize him by sending his horse to his stable. But when this may be, he can neither rightfully demand to know, or expect to be informed. How would the owner, as a matter of law, violate any agreement for which damages could be recovered, if he should, in the meantime, conclude to change his patropage and never return the horse. If it were otherwise then it might be inferred that every customer of a store is under an implied contract to continue to deal with it. If he were in debt for goods previously sold, he might be under a moral obligation not to withdraw his custom until he had- discharged what he owed, but there would be no legal obligation to that effect, arising from the circumstances.

The lien provided by this statute does not arise upon contract., True, the fee.d must be furnished under an agreement with the owner, but where this has been done’ the statute creates the lien in favor of the party furnishing it, irrespective of any agreement therefor to that effect. The lien given is a right to retain the property, that is its possession, as a security for the debt, and if this right is not insisted on when the horse is called for, the owner can not be said to violate any agreement in not afterward returning it; for he has no notice of an intention on the part of the keeper to assert a lien, when the property is voluntarily delivered to him ; and, therefore, any supposed agreement to return could only relate to a thing of which he has no notice, and, which in fact, has no existence.

Therefore, in a case like the one to which the court applied its charge, the person furnishing the feed and bestowing the care must, if he would assert a lien on the animal therefor, do so by retaining its possession when called for by the owner, unless his charges are p>aid. If he do not, and voluntarily deliver the animal to the owner, he must be held to have waived his right to assert a lien under the statute, and to be satisfied with the personal liability of the owner for the charges. Such is the rule in common law liens based on possession, and we see no reason why the rule should not apply here as well as there. It is more in harmony with the general policy of our statutes “ which always strive to secure public registration when possession is not given and retained, and which expressly provide for such registration -when the/ in terms create a lien not depending on possession.” Holmes, J., in Burton v. Frye, 139 Mass. 126, 130. See also the following cases : Perkins v. Boardman, 14 Gray, 481; Papinsau v. Wontworth, 136 Mass. 543; Forth v. Simpson, 66 Eng. Com. Law, 680.

What should be the rule in cases where the animal is placed by the owner with a person to be fed and cared for, not temporarily — the horse being ordinarily kept at Tome or somewhere else by the owner — but, permanently for.some time either definite or indefinite, presents a different question. In such case where the owner is allowed to use it, its voluntary delivery to him for such purpose, might be said to imply a contract to return the animal, and a failure to do so would be such a fraud as to estop the owner from setting up that the lien had been lost by such voluntary delivery. But this is not the case before us, and we express no definite opinion upon it at this time.

We have examined the cases cited by counsel for the plaintiff in error, but fail to find that they give any considerable support to his view of the case.

The case of Young v. Kimball, 23 Penn. St. 195, is simply to the effect that where the owner forcibly or clandestinely obtains possession of the subject of the lien, the lienor’s right is not impaired by such deprivation of the possession. Munson v. Porter, 63 Ia. 453, rightly holds that demanding more than is due, will not entitle the owner to replevin the property without paying what is due. And Eckland v. Donahue, 9 Daly, 214, holds that replevin of the property cannot be had by bi’inging it before the defendant had time to make out his bill and give notice of his intention to perfect a lien, as required by statute.

The cases of Caldwell v. Tutt, 10 Lea. (Ten.) 258, and of Smith v. Marden, 60'N. H. 509, would tend to support the case where animals are, for the time being, permanently left with a person to be fed and cared for, with the right in the owner to use them. In such cases it is held that the lien is not thereby affected as against a creditor of the owner. The possession of the animal by the owner under such circumstances is not regarded as terminating the bailment, the pos•session being constructively that of the bailee, and under an implied contract to return the animal as soon as the use is at an end. This seems somewhat plausible, but whether sound or not, we do not, for the reasons before stated, now determine.

Judgment affirmed.  