62 an assignee, the lien is lost.59 This is one reason why a livery stable keeper was not considered to have a lien at common law, since the owner of the horse was constantly taking the horse into his possession for use, thus interrupting the bailee's possession."" If the bailment is made without the consent of the owner, the bailee has no lien as against him.61 A subcontractor or servant employed by the bailee has no lien for there is no privity between him and the bailor. The whole lien extends to every part of the goods embraced in one contract of bailment, and no part of it is lost by the delivery up of part of the property, the lien being released as to the property delivered, but the whole lien attaching to the part retained in the bailee's possession." Under the common law, the bailee for hire has no power of sale to satisfy his lien, and has merely the right to retain possession of the goods until his demands are satisfied, unless given a power of sale by contract or statute, and if such a remedy is given by statute, the statute must be complied with strictly, being in derogation of the common law. The lien is terminated by payment of the debt,$5 by loss of possession of the property, or may be waived by acts of the bailee inconsistent with the existence of a lien, and an agreement to give credit, or a special contract for a method of payment inconsistent with a lien, is held a waiver.68 64 Iowa 207; In re Merrick, 91 Mich. 342, 51 N. W. 890; Danzer v. Nathan, 145 App. Div. (N. Y.) 448, 129 N. Y. S. 966; McDougall v. Crapon, 95 N. Car. 292; Kitteridge v. Freeman, 48 Vt. 62. Artisan's lien on silk for work done thereon ceases when silk repasses into bailor's hands. Delaware, L. & W. R. Co. v. David (N. J.), 82 Atl. 516. Van Zile Bailments (2d ed.), § 72; Robinson v. Larrabee, 63 Maine 116; Morse v. Androscoggin R. Co., 39 Maine 285; Stickney v. Allen, 10 Gray (Mass.) 352; Kitteridge v. Freeman, 48 Vt. 62. Hale Bailments, p. 225. 61 Clark v. Hale, 34 Conn. 398; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61; Globe Works v. Wright, 106 Mass. 207; White v. Smith, 44 N. J. L. 105; Hill v. Burgess, 37 S. Car. 604, 15 S. E. 963. "1 Jones Liens, §§ 721, 737, 738; 63 66 63 67 Jacobs v. Knapp, 50 N. H. 71; Gross 641 Jones Liens, § 1033; Hale Bailments, p. 234; Lickbarrow v. Mason, 6 East 21; Doane v. Russell, 3 Gray (Mass.) 382; Busfield v. Wheeler, 14 Allen (Mass.) 139. 65 See note 47 et seq. 6 See cases cited in note 58. 67 Alabama Cotton Oil Co. v. Weeden, 150 Ala. 587, 43 So. 926; Brackett v. Pierson, 114 App. Div. (N. Y.) 281, 99 N. Y. S. 770. Hale V. Barrett, 26 I11. 195; Tucker v. Taylor, 53 Ind. 93; Rob 69 The priority of the lien of the bailee who works upon a chattel depends entirely upon the circumstances of the contract of bailment. The general rule is that such a lien is inferior to a mortgage recorded prior to the bailment for work. But it seems that a workman's lien for repairs necessary to preserve a chattel may be superior to the rights of a mortgagee, whose mortgage is of record, as where a workman who repaired a canal-boat which had sunk and which would have been useless without repair was held to have a lien for such services prior to the rights of the mortgagee. 70 inson v. Larrabee, 63 Maine 116; Morrill v. Merrill, 64 N. H. 71, 6 Atl. 602; Bailey v. Adams, 14 Wend. (N. Y.) 201; Murphy v. Lippe, 35 N. Y. Super. Ct. 542. Bissell v. Pearce, 28 N. Y. 252; McGhee v. Edwards, 87 Tenn. 506, 11 70 Williams v. Allsup, 10 C. B. (N. § 3095. Bailments of hired custody.-The only real distinction between bailments for the custody of chattels and bailments of chattels for work thereupon is usually in the character of services rendered. All the general principles of bailments apply to these contracts as well as to other bailments for hire. We shall proceed to note some of the special applications of these principles to the relationship of custodian, in so far as these applications are peculiar. First will be considered warehousemen, including storage-house keepers, elevators, and common carriers when holding goods in storage; next, wharfingers, factors, and forwarders, safe-deposit bailees, and other custodians, such as public officers. § 3096. Warehouseman defined-Public and private warehousemen.-A warehouseman is one who, as a business, receives the goods and merchandise of others to be stored in his warehouse for hire. By statute in some of the states certain 'For other definitions see Bouvier Law. Dict.; Goddard Bailments, & 150; Van Zile Bailments (2d ed.), § 167; Snydacker v. Blatchley, 177 Ill. 506, 52 N. E. 742, citing Bucher v. 1 classes of warehousemen, especially the owners of grain elevators, are made public warehousemen, under the obligation to store for all who may apply, in a manner analogous to the obligation of the innkeeper or carrier, but as a rule warehouses are not public, and the owner is under no obligation to receive goods for all. Bonded warehouses are those designated by the United States government for the reception and storage of imports untii duties have been paid, and they are held to be private warehouses. § 3097. Delivery and acceptance-Commencement of liability. It is generally necessary that the property should be in the possession of the warehouseman and under his control in order that he shall be held for the care of the goods, but it is not necessary that the property should have been stored away first. It is held that his liability begins as soon as the warehouse crane has been attached to the goods, and it is settled that if the warehouseman has consented to take charge of goods before they reach the warehouse, he is liable from that moment. It follows that if there is no delivery and no acceptance, actual or constructive, the warehouseman is not bound. The question as to whether the delivery of goods to a warehouseman constitutes housemen's liability as bailees, see notes, 136 Am. St. 226, 6 L. R. A. 857, 7 L. R. A. 529. The keeper of a cotton yard who receives compensation for weighing and hauling each bale and is accustomed to keep the cotton in the yard between the time of hauling and weighing, is a custodian for hire, though he receives no compensation for the actual storage. Vogel v. Braudrick, 25 Okla. 259, 105 Pac. 197. 2 Goddard Bailments. § 149; Van Zile Bailments (2d ed.), § 168; Pontiac Nat. Bank v. Langan, 28 Ill. App. 401; Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490; Delaware L. & W. &c. R. Co. v. Central Stock Yards Co., 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855, affd. 46 N. J. Eq. 280, 19 Atl. 185; Brass v. State of North Dakota, 153 U. S. 391, 38 L. ed. 757, 14 Sup. Ct. 857; Munn_v. Illinois, 94 U. S. 113, 24 L. ed. 77; Ogden v. Saunders, 12 Wheat. (U. S.) 359, 6 L. ed. 656. 8 Macklin v. Frasier, 9 Bush (Ky.) 3; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Fairfax v. N. Y. Central R. Co., 67 N. Y. 11. Delaware, L. & W. . Co. v. Central Stockyard Co., 45 1. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 955, affd. 46 N. J. Eq. 280, 19 Atl. 185; Titsworth v. Winnegar, 51 Barb. (N. Y.) 148; Rodgers v. Stopkel, 32 Pa. St. 111, 72 Am. Dec. 775; Blin v. Mayo, 10 Vt. 56, 33 Am. Dec. 155. Thomas v. Day, 4 Esp. 262; Jeffersonville R. Co. v. White, 6 Bush (Ky.) 251; Merritt v. Old Colony &c. R. Co., 11 Allen (Mass.) 80; De Mott v. Laraway, 14 Wend. (N. Y.) 225, 28 Am. Dec. 523. 6 Merritt v. Old Colony &c. R. Co., 11 Allen (Mass.) 80; Ducker v. Barnett, 5 Mo. 97; Farrell v. Richmond & D. R. Co., 102 N. Car. 390, 9 S. E. 302, 3 L. R. A. 647, 11 Am. St. 760; Rodgers v. Stophel, 32 Pa. St. 111, 72 Am. Dec. 775. a bailment or a sale was considered in a previous chapter." The time when the carrier's liability as such terminates and that as warehouseman begins will be considered in the discussion of carriers.8 § 3098. Warehouse receipts-Their effect and assignability. Usually upon acceptance of goods the warehouseman issues to the owner a receipt describing the property, with the date of delivery, and the person from whom received, while the undertaking of the warehouseman, the manner of storage of the property, the amount of the charges and other parts of the contract are often set out in the receipt. No particular form is essential, but a mere memorandum is sufficient, if signed by the warehouseman, to hold him to the obligation to redeliver to the bailor or his assignee the goods described. Warehouse receipts are regarded as representative of the goods stored, and their delivery for the purpose of transferring the goods has the same effect as the delivery of the property itself, but no more, passing to the transferee or assignee only the rights of the transferrer, for these receipts are not negotiable in the sense of negotiable commercial paper.10 The warehouse receipt stands in most respects upon practically the same footing in law as the bill of lading issued by the carrier.11 The assignment of a receipt in the nature * See §§ 3004-3007, supra. See Carrier's liability as warehouseman, infra, §§ 3271-3272. Jones on Pledges (2d ed.), § 298; National Union Bank v. Shearer, 225 Pa. 470, 74 Atl. 351, 17 Am. & Eng. Ann. Cas. 664; Harris v. Bradley, 2 Dill. (U. S.) 284, Fed. Cas. No. 6116. But a mere weighing tag is not a warehouse receipt. Sinsheimer v. Whitely, 111 Cal. 378, 52 Am. St. 192. 10 State Bank of City of N. Y. v. Waterhouse, 70 Conn. 76, 38 Atl. 904, 66 Am. St. 82; Zellner v. Mobley, 84 Ga. 746, 11 S. E. 402, 20 Am. St. 390; Burton v. Curyea, 40 I11. 320, 89 Ám. Dec. 350; Broadwell v. Howard, 77 Ill. 305; Dolliff v. Robbins, 83 Minn. 498, 86 N. W. 772, 85 Am. St. 466; Second Nat. Bank v. Wal bridge, 19 Ohio St. 419, 2 Am. Rep. 408; National Union Bank of Reading v. Shearer, 225 Pa. St. 470, 74 Atl. 351, 17 Am. & Eng. Ann. Cas. 664 and note; Davis v. Bradley, 28 Vt. 118, 65 Am. Dec. 226. Indorsement in blank and unconditional delivery of warehouse receipts transfers title for valuable consideration. St. Anthony &c. Elevator Co. V. Dawson, 20 N. Dak. 18, 126 N. W. 1013, Ann. Cas. 1912B. 1337. Receipt for cotton issued by a cotton compress company is not a negotiable instrument under the law merchant, and assignee of such receipt is not a bailor to the warehouseman in the absence of notice to the latter. Stamford Compress v. Farmers' &c. Bank (Tex.), 143 S. W. 1142. "See infra, §§ 3163, 3164. |