Drummond v. Griffin , 114 Me. 120 ( 1915 )

Spear, J.

On report. The case shows that the Franklin Laundry Company of Bangor, on April nth, 1913, took one horse, and at a subsequent date, another horse, to the stable of Charles L. Griffin, the defendant, under a contract for food and shelter. The horses remained, under the contract, in the defendant’s stable until July 20, 1914. Upon this date they were replevied by the plaintiff by virtue of a title conveyed to him by a mortgage from the laundry company to him, dated and recorded January 8th, 1914. No question can be raised as to the plaintiff’s right of action, for a breach of the condition of the mortgage. Accordingly the only issue is, whether the defendant had, at the date of the replevin, preserved his lien.

It is admitted that the plaintiff had no actual knowledge that the horses were boarded at the defendant’s stable, until April 18, 1914. Nor do we think knowledge can be implied. During all the time the horses were kept in the stable, the laundry company was permitted to use them in the ordinary way in the prosecution of its business. They were used before and after the date of the mortgage in the same way. The issue then is: Did the defendant at the time the horses were replevied have a lien on them for the amount due for their board, which accrued prior to the date of the mortgage? It seems to be well settled that he did not. The taking of the horses, by the company for use in its business, from day to day, while, for the time being, depriving the defendant of his lien, would, nevertheless, revest him in his lien upon the restitution of the horses to his custody for a continuation of food and shelter, under his existing contract for so doing; but this rule does not apply in case of a mortgagee with whom no such contract exists, and without notice. By the mortgage to him the plaintiff acquired a good title to the horses, subject to the defendant’s lien. But, after this time the defendant let the horses go out of his custody into that of the company. This, against the plaintiff’s right as owner, under a recorded mortgage, was.such a relinquishment of possession as extinguished and discharged the defendant’s lien. The theory is, that the surrender, of the lien temporarily by the defendant, gives the mortgagee a prior right, which from that time on continues without interruption or discharge. Perkins v. Boardman, et al., 14 Gray, 481, seems to be directly in point. In this case the presiding Justice ruled, under a contract between the owner and keeper of the horse, that the keeper should have a lien on the horse until “she had eaten herself up,” although used from day to day in the laundry business, that the temporary relinquishment of custody for the purpose of use, did not defeat the lienor’s right against a mortgage. But the court held otherwise, stating that permission to the mortgagor to take the horse into his possession and use it as he pleased in carrying on his business “as againt the plaintiff having rights under his duly recorded mortgage was such a relinquishment of possession as extinguished and discharged the previously existing lien. The mortgage then became prior in right and the incumbrance created by it continued without interruption, disturbance or discharge from and after the time when this lien was lost; and the mortgagee thereby acquired a paramount right and title to the property.”

Upon April 18th, as before stated, the plaintiff had knowledge that the horses in which he held title under his mortgage were being boarded at the defendant’s stable from which his consent that they might be so boarded might be properly implied. But when the plaintiff demanded the horses under his mortgage just prior to July 20, the date of his writ, upon inquiry as to the amount due, the defendant claimed not only the amount due for keeping the horses subsequent to April 18th, when the plaintiff may be regarded as having consented to their being kept by the defendant, but also the full amount due for keeping prior to that date and refused to accept any less sum.

As before determined, it appears that the plaintiff could not be held for the sum demanded for keeping the horses prior to April 18th. The defendant refused to deliver the horses to the plaintiff on demand unless he paid this sum. The plaintiff was, therefore, excused from making any tender of the amount which might have been due subsequent to April 18th before serving his writ. Bowden v. Dougan, 91 Maine, 141. The plaintiff, accordingly, having title in the horses, had a right to their custody without further ceremony.

Judgment for the plaintiff.