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$ 1476. What claims the lien precedes. The vendor's lien, while it remains in force, precedes, of course, all claims arising since the lien accrued, of the vendee, his assignees or his attaching creditors, unless the vendor has been estopped from asserting it.

2. Waiver or Abandonment of Lien. $ 1477. Waiver of the lien — Expressly or by implication. The lien of the vendor is a right which the law gives him for his own benefit and protection, and it may therefore be waired by him if he see fit to do so. This waiver may be either express or implied. The express waiver may be either in the form of a specific relinquishment, or of some specific stipulation for security which would supersede the lien. Thus it was said in a leading case? by Lord Westbury: "Lien is not the result of an express contract; it is given by implication of law. If, therefore, a mercantile transaction which might involve a lien is created by a written contract, and security giren for the result of the dealings in that relation, the express stipulation and agreement of the parties for security exclude lien, and limit their rights by the extent of the express contract that they have made. Expressum facit cessare tacitum.

$ 1478. The lien may also be waived by implication, says Mr. Benjamin, " at the time of the formation of the contract, when the terms show that it was not contemplated that the vendor should retain possession till payment; and it may be abandoned during the performance of the contract by the vendor's actually parting with the goods before payment." $ 1479. - Waiver by giving credit.-The lien is waired

. by implication where the seller, without stipulating otherwise,

1 Tuthill v. Skidmore, 124 N. Y. 148, in writing, it will ordinarily be a 26 N. E. R. 348; Robinson v. Morgan, question for the jury whether the 65 Vt. 37, 25 Atl. R. 899.

lien was waived or not. Pickett F. 2 Chambers v. Davidson, L. R. 1 Pr. Bullock, 52 N. H. 354. Coun. 296.

3 Benjamin on Sale (6th Am. ed.), Where the new agreement is not $ 797. See also Jones on Liens, $ 54s.

3 66

gives credit for the price.? “ Conventio legem vincit,” said Chief Justice Shaw; “and when a credit is given by agreement, the vendee has a right to the custody and actual possession, on a promise to pay at a future time. He may then take the goods away, and into his own actual possession; and if he does so, the lien of the vendor is gone, it being a right incident to the possession.” “It is, of course, competent,” says Mr.

? Benjamin, “ for the parties to agree expressly that the goods, though sold on credit, are not to be delivered till paid for; but unless this special agreement, or an established usage to the same effect in the particular trade of the parties, can be shown, selling goods on credit means ex vi terminorum that the buyer is to take them into his possession, and the vendor is to trust to the buyer's promise for the payment of the price at a future time.'



$ 1480. - This waiver, however, as will be seen hereafter," is a conditional one, based upon the implied understanding that the buyer shall keep his credit good, and the lien will revive if the vendee proves insolvent while the vendor still retains the goods or any part of them in his possession.

§ 1481. — Waiver by taking bill or note.- The lien is also waived, in the absence of an agreement to the contrary, where the seller takes from the buyer a promissory note, bill of exchange, or other security, payable at a future day; 6 for this would operate as an extension of credit until maturity of



1 Jones on Liens, S 850.

6 Jones on Liens, S 850; Chambers 2 In Arnold v. Delano, 4 Cush. v. Davidson, L. R. 1 Pr. Coun. 296; (Mass.) 33, 50 Am. Dec. 754, Adam's Hewison v. Guthrie, 2 Bing. N. C. Cases, 7.

755; Horncastle v. Farron, 3 B. & : Benjamin on Sale (6th Am. ed.), Ald. 497; McElwee v. Metropolitan $ 797, quoted in McElwee v. Lumber Lumber Co., 69 Fed. R. 302, 16 C. C. Co., 69 Fed. R. 302, 16 C. C. A. 232, 37 A. 232, 37 U. S. App. 266; Leonard v. U. S. App. 266.

Davis, 1 Black (U. S.), 476; McCraw 4 To same effect: Arnold v. Delano, v. Gilmer, 83 N. C. 162; McNail v. supra; Erwin v. Torrey, 8 Martin Ziegler, 68 Ill. 224; Thompson v. (La.), 90, 13 Am. Dec. 279.

Wedge, 50 Wis. 642, 7 N. W. R. 560. 5 See post, $ 1521.

the instrument; though such would not be the effect if the note is payable on demand.1

The lien, however, though waived by taking the security, will revive, as noted in a later section, if the maker before payment is found to be insolvent or the note is dishonored while the goods are still in the possession of the seller.

§ 1482. Lien abandoned by unconditional delivery.— The lien of the seller being a right to retain the goods to coerce payment, its existence necessarily depends upon and is limited to the seller's continuance of possession. An absolute and unconditional surrender of possession by the seller, therefore, must clearly operate as an abandonment of his lien and deprive him of his right to insist upon payment as a condition precedent to or contemporaneous with delivery. And this will be true, even though the buyer is insolvent and knows that he will be unable to pay for the goods. There may be grounds for a rescission, but there is no lien.'

§ 1483. The question, however, of what shall constitute such a delivery as will defeat his lien is one which is full of difficulty. The actual, absolute and unconditional delivery of the physical possession of the goods to the buyer leaves no room for controversy, but when the field of constructive, symbolical, sub

1 Jones on Liens, § 854; Clark v. Draper, 19 N. H. 419.

2 See post, § 1508 et seq.

3 Brownell Car Co. v. Barnard, 116 Mo. 667, 22 S. W. R. 503; Straus v. Rothan, 102 Mo. 261, 14 S. W. R. 940; Lewis v. Steiner, 84 Tex. 364, 19 S. W. R. 516; Slack v. Collins, 145 Ind. 569, 42 N. E. R. 910; Jenkins v. Eichelberger, 4 Watts (Pa.), 121, 28 Am. Dec. 691; Neal v. Boggan, 97 Ala. 611, 11 S. R. 809; Husted v. Ingraham, 75 N. Y. 251; Parker v. Baxter, 86 N. Y. 586; Smith v. Dennie, 6 Pick. (Mass.) 262, 17 Am. Dec. 368; Haskins v. Warren, 115 Mass. 514; Freeman

v. Nichols, 116 Mass. 309; Cole v. Berry, 42 N. J. L. 308, 36 Am. R. 511; Muskegon Booming Co. v. Underhill, 43 Mich. 629, 5 N. W. R. 1073; Thompson v. Wedge, 50 Wis. 642, 7 N. W. R. 560; Lupin v. Marie, 6 Wend. (N. Y.) 77, 21 Am. Dec. 256; James v. Bird, 8 Leigh (Va.), 510, 31 Am. Dec. 668; Beam v. Blanton, 3 Ired. Eq. (N. C.) 59; Blackshear v. Burke, 74 Ala. 239.

Statutes making the property specially subject to executions for the purchase price have not altered the rule. Straus v. Rothan, supra.

4 Johnson v. Farnum, 56 Ga. 144.

stituted or partial delivery is entered, embarrassing questions at once present themselves. The word “delivery,” as has been already seen, is used with a variety of significations having some points of similarity, but also some of difference. There are, for example, the delivery which shall satisfy the statute of frauds, the delivery which will suffice to pass the title, the delivery due in performance of the contract, and, now, the delivery which shall mark the abandonment of the seller's lien. The purpose here is to discuss this latter type with its more important variations of form.

$ 1484. —It is, of course, true that the effect of a delivery which would otherwise defeat the lien may be altered by an express agreement which in some form preserves it;' but that subject belongs to the field of lien by contract, and not to that which includes only liens arising by implication of law like the one now under consideration.

$ 1485.

Lien not lost by delivery which passes the title but does not change possession.-- In pursuance of a distinction referred to in the preceding section, it is to be observed that the lien is not lost by such a delivery as may be sufficient to pass the title but which does not involve an actual change of possession. Thus the lien is not divested by such acts as marking the goods in the buyer's name, weighing, measuring or setting them aside, boxing them up by the buyer's orders and putting his name upon them, so long as the seller retains the actual possession of the goods and has not given credit for the price.

1 Thus in Gregory v. Morris, 96 U.S. tween themselves, will be good after 619, it is said: “The lien at common delivery.” law of the vendor of personal prop- 2 Perrine v. Barnard, 142 Ind. 448, erty to secure the payment of pur- 41 N. E. R. 820; Wanamaker v. Yerkes. chase-money is lost by the voluntary 70 Pa. St. 443; Curtin v. Isaacsen, 36 and unconditional delivery of the W. Va. 391, 15 S. E. R. 171; Southproperty to the purchaser; but this western F. & C. Co. v. Stanard, 44 does not prevent the parties from Mo. 71, 100 Am. Dec. 255; Sigerson v. contracting for a lien which, as be- Kahman, 39 Mo. 206; Owens v. Weed

$ 1486. —And even if he has given credit for the price, the lien, as will be seen, revives if the buyer proves to be insolvent while the goods still remain in the possession of the seller.

$ 1487. - So lien not lost if possession retained though seller's attitude has changed. So, again, it is well settled that the fact that the seller's attitude to the goods or the buyer may have changed will not, unless some element of estoppel has intervened, operate to destroy his lien, so long as he actually retains the possession of the goods. Thus it is clear that, cases of estoppel hereafter considered being not involved, the seller does not lose his lien merely by becoming bailee or ware houseman of the buyer in respect of the goods sold, eren though as such warehouseman he charges the buyer with rent for storing and keeping the goods. And even thongh, by giving credit or otherwise, the lien should be suspended for a period, it will, no element of estoppel intervening, revive, as noticed in a later section, if the buyer proves insolvent before an actual delivery of the goods.

$ 1488. - Lien not lost by special and qualified delivery. There may, moreover, be such a special and qualified surrender of the present custody of the goods as will not amount to an abandonment of the lien. Thus a temporary and qualified delivery of the goods to the purchaser for the purpose of examination only will not effect a surrender of the lien;s and a usage of trade to make such a delivery may confirm its character; but

man, 82 Ill. 409; Thompson v. Balt. 1 Arnold v. Delano, supra; post, & O. R. Co., 28 Md. 396; Arnold v. S 1508 et seq. Delano, 4 Cush. (Mass.) 33, 50 Am. 2 See Townley v.

Crump, 4 Adol & Dec. 754; Goodall v. Skelton, 2 H. Bl. El. 58. Compare Chapman v. Searle 316; Dixon v. Yates, 5 B. & Ad. 313; (1825), 3 Pick. (Mass.) 38. Simmons v. Swift, 5 B. & Cr. 857; 3 See Miles v. Gorton, 2 Cromp & Townley v. Crump, 4 A. & E. 58; M. 504. Proctor v. Jones, 2 C. & P. 532; Boul- 4 See post, $ 1508 et seq. ter v. Arnott, 1 C. & M. 333.

• Haskins v. Warren (1874), 115 Mass. 514.

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