Danforth v. Pratt , 42 Me. 50 ( 1856 )

Goodenow, J.

This is an action of replevin. The general property in the mare replevied, it is admitted, is in the plaintiff. The defendant claims to hold possession of said mare by virtue of a lien thereon, for “ feeding, keeping, doctoring and curing said mare.”

We are of opinion, upon the undisputed facts in the case, that the defendant had such lien, if not as an inn-keeper, as a farrier. Lord v. Jones, 24 Maine, 439.

Has the defendant relinquished or waived his lien ?

Hastings Strickland, introduced by the plaintiff, testified, “ that the plaintiff told him, he had been to Oldtown, and that the defendant refused to let him have the mare. Whereupon he went to see the defendant on account of Mr. Babb; that he told the defendant that Babb was perfectly responsible; that Babb was up river on a drive, and would not be down before July, and that he, (Strickland,) would be responsible to him for keeping the mare. Whereupon the defendant said he would wait till Babb came down, and would send the mare down by the first team — the first opportunity he had to send her down.” It is in evidence that A. W. Noble, in the employment of Babb, hired the mare of the plaintiff; that she was badly injured while in his possession, and that she was put up at the defendant’s stable by him; and that the plaintiff the nest day called and examined her, said she was badly hurt, &c., and that he should have to leave her there till she got so he could get her out to pasture, and told the ostler to take good care of her.

A lien may be waived or lost, by voluntarily parting with' the possession of the goods; or by any act or agreement between the parties, by which it is surrendered or becomes inapplicable. The defendant, in this case, did not voluntarily part with the possession of the mare.

The agreement with Mr. Strickland was not such an agreement as the law contemplates.

It was not between the parties, the plaintiff and defendant. Mr. Strickland says he went to see the defendant on account of Babb.

It was a promise on the part of the defendant, without any consideration. It was not intended by either party to cancel or extinguish the original claim which the defendant had on Babb or on the plaintiff, and to substitute a new contract with Strickland, in lieu of it. The promise of Strickland to be responsible for the keeping of the mare, was only a promise to pay the debt of another, and not being in writing, was void by the statute of frauds. It furnished no consideration for the promise of the defendant. It was nudum pactum.

A lien must be regarded as something of value. It may be given up without any valuable consideration. But an agreement to give it up, in order to be obligatory, must be based on a legal consideration.

According to the agreement of the parties, as reported by the presiding Judge, a nonsuit must be entered in this case, and judgment for defendant for costs, and also for a return of the mare replevied, unless the plaintiff shall cause the defendant’s claim for which he has a lien, to be discharged forthwith.

Tenney, C. J., and Rice and Appleton, J. J.. concurred.