dissenting. I am wholly unable to concur in opinion with the majority of the court. The evidence, in my judgment, clearly negatives the assumption that by such a delivery as is here shown, appellees intended to waive their lien upon the goods. Ah express declaration of an intention to insist upon the performance of the condition and to claim the lien upon the goods, which is implied in every sale for cash, is not necessary. As is said in Osborne v. Gantz, “ the intent may be inferred from the acts of the parties and circumstances of the case, and it is a question of fact for the jury.” Here the court below, sitting in the place of a jury, has found that there was no intention to waive, and, as it seems to me, this finding is supported by every fact and circumstance in the case. The goods were delivered in installments. The last lot was delivered July 6th, and on the very next morning, as soon as the bill could reasonably be made out, it was sent to Lincoln’s place of business, with demand for payment. From thence onward, Wirts & Oo. continued to press for the money, until Lincoln suddenly transferred the goods to the defendant by assignment. The utmost that can rightfully be claimed by the appellant, on the question as to whether Wirts & Co. intended to waive their lien, is that it is a close one under the evidence. This being so, for us to now disturb the finding of the court below, on a pure question of fact, is not only to depart from our own constantly reiterated rule, but also to disregard the settled doctrine of the Supreme Court.
By the transfer of the goods, Lincoln was guilty of an unlawful conversion of the property, and the defendant, by receiving and holding them, became a party to the wrong. Where goods are tortiously taken or received, no demand is necessary before suit brought.
I am therefore of opinion that the judgment ought to be affirmed.