Brown v. Dempsey

Mr. Justice Gordon

delivered the opinion of the court,

This was an action of replevin, brought by the plaintiffs for the recovery of a twenty-horse power steam-boiler, which had been left with the defendants for repairs. They, the defendants, claimed to have a claim upon said boiler, for work done and material furnished in the repairing thereof, and refused to deliver the same until their charges were fully paid. A submission of this case was made, by the parties thereto, under the Act of May 14th 1874, to W. W. Brown, Esq., who found and reported as follows: 1. “ That the property in question, one steam-boiler, was, prior to the bringing of this suit, owned by H. W. Chase, who, for the purpose of maldng repairs thereon, had it taken to the shops of the defendants, and employed the defendants to make the necessary repairs thereon. 2. That afterwards, and while the repairs were in progress', Chase sold and assigned the same to the plaintiffs, the title thereto thus becoming vested in the plaintiffs prior to the bringing of this suit. 3. That the value of said boiler, at the time of the alleged taking, was $515. 4. That the material furnished and the repairs made by the defendants were of the value of $93. 5. That at the time of the completion of such repairs, and the furnishing of such material, the defendants had a lien on said boiler for the full amount thereof, to wit: the sum of $93. 6. That the plaintiffs were not entitled to recover in replevin without first tendering (or at least offering to pay) the whole amount of the lien for material and repairs. 7. That the largest amount offered by the plaintiffs, for material furnished and labor done, was $65. 8. And, therefore, judgment in this ease must be for the defendants.”

From the facts as here found, we hesitate not in saying that the case is governed by McIntyre v. Carver, 2 W. & S. 392. As was there said, by Gibson, C. J.: “It is not to be doubted that the law of particular or specific lien on goods in the hands of a tradesman or artisan for the price of work done on them, though there is no trace of its recognition in our books, was brought hither by our ancestors, and that it is part of our common law.” Mathias v. Sellers, 5 Norris 486, reiterates this same rule, and holds that the bailor cannot maintain replevin for goods left by him with a tradesman for manufacture, without first discharging the lien which the tradesman has acquired for work and labor upon such goods, either by payment or tender of the amount due. And it is there said that such lien exists equally whether there be an agreement for a price stipulated, or only an implied contract to pay what the work may be reasonably worth. It is obvious that this is a case in point and governs the one in hand. The defendants, it seems, did put $93 worth of work upon the boiler, whilst the plaintiffs tendered but $65: a sum short of that necessary to discharge the lien. The plaintiffs seek to avoid the result flowing from this want of a full tender, by the allegation that the Dempsey Brothers demanded the sum of $185, an amount far in excess of the worth of the work, and that they refused to deliver the boiler unless that amount was paid. Had this averment been sustained by the finding of the referee, the whole character of the case would have been changed; for, as was held in Macky v. Dillinger, 23 P. F. Smith 85, where a party having a lien, as in the case in hand, declines to accept payment or performance except in a way to which he is not entitled, he cannot defend on the ground that the action of replevin has been prematurely brought. For a rule such as this there is a good reason: the artisan’s lien is designed to secure to him his honest and lawful charges, but when he attempts to use it as an instrument of extortion, the reason upon which it depends fails, and, as a consequence, the lien itself fails.

But the facts as above stated were not found by the referee, and even if we had the testimony fully before us, which we have not, it is not within our province, in this particular, to amend or revise the finding of the referee. It has been held in Jamison v. Collins, 2 Norris 359, which was followed by Lee v. Keys, 7 Norris 175, that where a case has been submitted under the Act of May 14th 1874, the Supreme Court can only hear and determine questions .of law arising from the rulings of the referee, but cannot go behind his findings of facts. The referee fills the place of both judge and jury, and our power of revision extends only to his decisions upon the law governing the case submitted to him, and not to his conelusions upon the facts; into these we cannot make inquiry as long as they are untainted by fraud.

Judgment affirmed.