Hamilton v. McLaughlin , 145 Mass. 20 ( 1887 )

W. Alleít, J.

The only lien which the defendant claims is for keeping the horse after notice to the plaintiffs, and a request to take it away. Whether the evidence was sufficient to prove that he had such a lien, and whether the instructions asked in regard to it were sound, we do not find it necessary to consider. It is immaterial that the defendant had a lien, if he waived it at the time of the demand. A claim to hold the possession of the property, and a refusal to deliver it on demand under and in assertion of a right other than that given by the lien, would be evidence of a conversion. There is no dispute about the facts. When the defendant notified the plaintiffs that the horse was at livery with him, he stated the amount of board due. When the demand was made by the plaintiffs’ agent a few weeks later, the defendant refused to deliver the horse unless the whole bill for its board, amounting to about $40, was paid. He made no distinction between what occurred before and what occurred after the notice to the plaintiffs, but demanded the whole in one sum and as one debt. Had he claimed distinct liens for distinct debts, for what occurred before and what occurred after the notice to the plaintiffs, it may be that he would not thereby have waived a valid lien for one of the debts only, without the refusal of a tender of that alone; but the demand for the whole as one debt, and the refusal to deliver the property unless the whole was paid, was a refusal to deliver the property upon the payment of the amount which had accrued after the notice, or to accept a tender of that, and rendered a tender of it unnecessary. Jones v. Tarleton, 9 M. & W. 675. The Norway, Br. & Lush. 404. Kerford v. Mondel, 5 H. & N. 931. Dirks v. Richards, 4 Man. & Gr. 574. Scarfe v. Morgan, 4 M. & W. 270.

The evidence of the plaintiffs’ title was sufficient, and there was no error in the instructions in regard to it.

Exceptions overruled.