The plaintiff claims by virtue of a lien at common law, and not under the statute. It appears, from the reported facts and the verdict of the jury, that the plaintiff contracted with the owners of the timber to haul and load it upon the railroad cars at a certain price per thousand feet, to be paid to him "upon the returns of sales," — that is to say, upon the receipt by the owners of the avails of the sales in market. It does not appear how long a credit was thus given by the plaintiff, nor is it material. A lien at common law is the right of detaining the property of another until some claim is satisfied: possession, actual or constructive, is essential to its existence. Hence, one who is bound by his contract to deliver to the owner property upon which he has expended labor, before the stipulated time of payment arrives cannot be entitled to a lien. The obligation to deliver before payment negatives the right to detain until payment. Stoddard Manufactory v. Huntley, 8 N.H. 441, and cases cited; Pinney v. Wells,10 Conn. 104; Pickman v. Woods, 6 Pick. 248; Stickney v. Allen, 10 Gray 352; Raymond v. Tyson, 17 How. (U.S.) 56; Chase v. Westmore, 5 M. S. 187; Crawshay v. Homfray, 4 B. A. 50; Alsager v. Dock Company, 14 Mees. W. 794; Foster v. Colby, 3 H. N. 705.
Inasmuch as the plaintiff had no lien upon the timber before delivery, it is immaterial whether that part of it for which he brings suit had or had not been delivered at the time when he asserted the lien, and for the same reason no question upon the right of stoppage in transitu arises.
Whether under the statute (G. L., c. 139, s. 13) a lien may exist notwithstanding credit is given need not be considered, because the plaintiff at the trial made no claim under the statute, but relied wholly upon a lien at common law.
Judgment on the verdict.
BLODGETT, J., did not sit: the others concurred. *Page 3