There is nothing in the contract between the *234plaintiff and Charles Steams, under which the brick in corn troversy were manufactured, by virtue of which the plaintiff can claim a lien upon them as against Stearns by agreement. If any such claim exists, it must rest on the right at common law of mechanics and artizans to retain property upon which they have bestowed labor and services, until the charge thereby attaching to it is paid and discharged. To the maintenance of such a lien, it is essential that the person who has performed the labor or rendered the service, should have the right of possession of the chattels over which it is claimed, and that this right should be actually exercised without relinquishment or abandonment. Cross on Lien, 31, 36; Yelv. (Amer. ed.) 67 i, note ; 2 Kent Com. (6th ed.) 639. Upon the undisputed facts of this case, it appears to us that the plaintiff fails to show any such possession of the property in question, as will support the lien which he sets up, in order to maintain this action. In the first place, he shows no right or interest in himself, either as owner, lessee, or tenant, to the possession of the yard in which the brick were made and burned. By virtue of the contract with the defendant corporation, who owned the land, Steams had the right to occupy the ground for a brickyard during the continuance of his contract, without charge, and for a year subsequent to the expiration of the contract, at a moderate rent. This gave to Stearns the possession of the premises for the time specified. But it does not appear that Stearns, either by his written contract with the plaintiff for the manufacture of the brick, or by any verbal agreement or act, surrendered the possession thereof to the plaintiff. On the contrary, it is especially provided by the written contract, that Stearns shall prepare the brickyard and fit it for use, and that he shall furnish and deliver on the premises from time to time as required, the materials for making and burning the brick, clearly implying that Stearns was to continue in possession, and it was proved at the trial that, in point of fact, the workmen of Stearns were employed in the yard enlarging and filling it up during the whole summer, while the plaintiff was engaged in striking the brick, and preparing and *235burning the kilns. Upon these facts, it is manifest that the plaintiff never had any exclusive and unconditional possession of the property. It was, at most, only a mixed possession with Stearns, or rather a license to the plaintiff to enter upon and use the yard of Stearns for the purpose of making and burning the brick. It is entirely clear that such a restricted and limited possession is insufficient to support a lien. It amounts to nothing more than the ordinary transaction of work done by one person in the manufacture or repair of articles for another, upon the premises of the latter. The workman in such a case has, to a certain extent, possession of the property, upon which his labor and services are expended; but it is a qualified and mixed possession, which can form no valid basis for a lien. Cross on Lien, 35, 36.
It was urged that the stipulation in the contract, by which it is provided that the plaintiff shall count out the brick, shows that the possession of the brick was in the plaintiff until a delivery was made to Stearns by this act of the plaintiff in counting the brick. But this argument proceeds on a misapprehension of that provision in the agreement. The purpose of counting the brick was, not to effect a delivery of them, but to ascertain the number manufactured, the amount due the plaintiff, and the sum which, by the terms of the contract, was to be paid to him in cash. Such, indeed, is the declared purpose of the clause in the agreement respecting the counting of the brick. Besides; it is expressly provided, that the plaintiff is not to be held to count the brick in the yard which may be left there on the first of November, but that they are to be counted by Stearns, who is to be allowed the expense thereof by the plaintiff, clearly showing that no delivery was necessary to vest the possession of the brick in Stearns, and that the sole object of counting the brick was to ascertain the sum due the plaintiff.
We think it equally clear, upon the facts proved, that if the plaintiff ever had any possession of the brick, it was relinquished by him after September 13th, when his foreman left the yard to do work elsewhere, and that Stearns after that *236time, and on the 25th September, when the bill of sale and delivery of the brick was made to the defendants, was in the sole and exclusive possession and control thereof. If, therefore, the plaintiff ever had any valid lien on the property, this was a clear abandonment and waiver of it.
Plaintiff nonsuit.