delivered the opinion of the court,
In the fall of 1872, Sellers & Radey, the plaintiffs below, entered into an agreement with Mathias, the defendant, to furnish him with tobacco at prices that were specified. This tobacco was to be worked up by the defendant into cigars of such kinds and brands as the plaintiffs from time to time should designate. Fixed prices for the manufacture of the cigars according to their quality were to’be allowed, and advances were to be made by the plaintiffs to the defendant for stamps and wages as the work should be done and the cigars be delivered.
On the 6th of November 1873, the defendant had manufactured 90.000 cigars, which were in his possession. The stamps for them were procured and paid for by the plaintiffs, who alleged at the trial that an agreement was then made with the defendant by Avhich they were to take them away when stamped, and a full and final settlement was afterwards to be made. Under this agreement the plaintiffs insisted that the right the defendant joossessed to retain the cigars as security for the balance due for their manufacture had been waived. There Avas conflicting evidence on this branch of the case, the defendant denying the existence of the suppflementary agreement. The question was one of fact for the jury, but it does not apopear to have been submitted. As the court held that the defendant was not in any event entitled to a lien, it became unimportant to ascertain whether it had or had not been waived.
When the replevin issued, the balance of the account of the plaintiffs against the defendant was $2585.40. This sum included $450 paid for stamps on the 6th of November 1873, and $54.65 paid to the sheriff, apparently for expenses in the action. The value of the 90.000 cigars the defendant had made Avas shoAvn by the testimony to be $2820. Including in the charges against him the $54.65 paid to the sheriff, there was due to the defendant, therefore, the sum of $234.60. Suit was brought without payment or tender of' the amount, and the court charged at the trial that the existence of a *491balance for work done in manufacturing the cigars, did not defeat the right of the plaintiffs to maintain the action.
It has long been a settled rule of the common law, that- goods deposited with a tradesman or artizan for .manufacture or repair, are subject for the work done on them to a specific lien. Thus, a tailor who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he i’s paid for his services. Neither is a ship carpenter bound to restore the ship which he has repaired; nor a jeweller the gem which he has set, or the seal which he has engraved; nor an agistor the horse AYhich he has taken on hire, until their respective compensations are paid. Story on Bailments, § 440, and the cases there cited. Though the right of lien probably originated in those cases in which there Avas an obligation, arising out of the public employment, to receive the goods, it is not now confined to that class of persons. A particular lien is given by the common laAV to any one who takes property in the AYay of his trade or occupation, to bestoAY labor and expense upon it. And it exists equally whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reaspnable price : 2 Kent’s Com. 635. It AYas said by Holroyd, J., in Crawshay v. Homfray, 4 Barn. & Ald. 50, that the principle laid down in Chase v. Wetmore, 5 Maule & Sel. 180, Avhere all the cases came under the consideration of the court, AYas this, that a special agreement did not of itself destroy the right to retain; but that it did so only Avhere it contained some special term inconsistent with that right. In 2 Selwyn’s Nisi Prius 540, the rule is stated to be, that the right of detaining a thing until the money due upon it be paid, may be Avaived by a special agreement as to the time or mode of payment; but not merely by an agreement for the payment of a fixed sum. The existence of the principle in its full reach has been recognised in Pennsylvania. McIntyre v. Carver, 2 W. & S. 392, Avas a replevin for thirty-four panel doors, AYhich McIntyre had made from lumber delivered to him by Carver. The suit Avas brought Avithout payment or tender of payment for the Avorlt McIntyre had done; but while it Avas pending, the money Avas offered and received. It Avas held that the tender and acceptance came too late to help the plaintiff. “ The suit was brought,” Chief Justice Gibson said, in entering the judgment, “ before the right of action Ayas complete, and such a defect cannot be cured by any subsequent act except a binding agreement not to take advantage of it.” In Pierce v. Sweet, 9 Casey 151,fit was decided that a bailee to AA'hom logs had been delivered to be converted into boards, had a lien on them for his labor independent of any special agreement; and that he could maintain an action against an execution creditor of the bailor by Avhom they had been taken out of his possession. It is clear, under all the precedents, that unless the defendant here Avaived his lien by some such new agreement as that AYhich the plaintiffs set up at the trial, he had *492the right to retain the cigars in controversy until he was paid for the work he had done in making them.
Nothing that was decided in Macky v. Dillinger, 23 P. E. Smith 85, was in conflict with the settled law of lien. Dillinger consigned goods to Moorehead, who advanced $1500 on them, and then pledged them, with other property, to Macky, to secure a loan for $3700. Macky knew they belonged to Dillinger. When they were demanded by Dillinger, Macky refused to deliver them except on the condition that his loan to Moorehead should be paid. Nothing was said at the time of Moorehead’s advances, and in the action of replevin which Dillinger brought, it was held that Macky had no right to set up Moorehead’s lien in his own defence; that as against him Dillinger could maintain his action without tendering repayment either of the loan made by himself or of -the advances made by Moorehead; and that the amount of the advances could be recouped from the damages Dillinger was entitled to recover. The decision was stated in the opinion of the present Chief Justice to rest on “the general doctrine of tender, that when a party declines to accept payment or performance except in a particular way to which he is not entitled, he cannot insist that the action is prematurely brought.”
At the argument here, the ground was taken that the pleadings did not present the issue tried in the court below, and that the question of the defendant’s right to a lien on the cigars in controversy could not be raised uhder the pleas of non cepit and property. If the point had been made at the trial, it may be that under the authority of Gillespie v. Goddard, 1 Pittsburgh. R. 306, a special plea would have been required to be filed; although in the current practice of our courts, questions of lien and of general and qualified ownership have usually been determined upon the pleas that were entered here. Non cepit and property were pleaded in McIntyre v. Carver. In Murray v. Paisley, 1 Teates 197, the plea was property absque hoc, under which the defendant offered to show a submission and award establishing his right to retain the goods in suit in a certain defined contingency. The court said : “ The evidence is certainly admissible. The defendant is at liberty under his plea to show either a general or special property in himself, either by bill of sale, delivery from the plaintiff, contract or otherwise. The defendant is not bound to give information to his adversary under what pretensions he claims the article in question.” The plea of property imposes on the plaintiff the necessity of establishing his title and the right of exclusive possession: Reinheimer v. Hemingway, 11 Casey 432. But it is not proposed to inquire into the scope and force of Gillespie v. Goddard as a precedent. Whatever the abstract rule might be held to be, it is too late to invoke it now. The points were presented to the court by the defendant’s counsel, and the jury were charged in reference to them without.objection or remonstrance. Where parties have gone to trial on the' merits of a cause, this court *493lias refused to reverse, although the pleadings made no issue for the jury: Lewisburg Railroad Co. v. Stees, 27 P. F. Smith 332. “In this state,” Judge Sharswood said in that case, “it is settled that the omission to compel the opposite party to perfect the pleadings beforehand, is a tacit agreement to waive matters of form, just as going to trial on a short plea is a waiver of the right to demand a plea in full form.” The merits of the cause were presented by the parties precisely as .if a special plea had been upon the record.- The points really contested in the Common Pleas are brought up fairly for review, and form the only issues which, with justice to the defendant and his counsel, this court can reach.
Judgment reversed and venire faaias de novo awarded.