Pickett v. Bullock , 52 N.H. 354 ( 1872 )

Sargent, C. J.

The right of lien is to be deemed to be waived when the party enters into a special agreement inconsistent with the existence of the lien, or from which a waiver of it may be fairly inferred. Possession is not only essential to the creation, but also to the continuance of a lien ; and when the party voluntarily parts with the possession of the property upon which the lien has attachéd, he is devested of the lien. 2 Kent’s Com. 638, 639.

The question in this case is, Could the court hold as matter of law, upon the facts stated, that the lien was waived, or should that question have been submitted to the jury? There was no change of possession or of property. Before the sale, the plaintiff had been keeping the cow as the property of Eliza Norcross, and after the sale it continued liefs, and he still had the possession. Might not the parties have agreed that the plaintiff should hold the cow subject to the lien for a certain time, under the new arrangement ? It might be improbable, but we can hardly decide that it would be impossible.

We think in this case, as in ordinary cases where the contract is merely verbal, it must be a question for the jury whether the lien was intended and understood by the parties to be waived or not. The new agreement, with all its attendant circumstances, is to be considered ; and if nothing is said about the lien, then the jury must find from all the evidence what their understanding was concerning it.

The verdict must be set aside, and a

New trial granted.