#### Eugene P. Shepard, Appellant, *against*George H. Rice, Respondent.

(Decided February 3rd, 1890.)

Under a contract of sale between the par-ties, defendant agreed to take money-drawers in payment for desks, but subsequently refused to accept them, on the ground that they were not as represented, whereupon plaintiff paid cash for the desks and demanded a return of the money-drawers. *Held,*that defendant had no right to retain them under a claim for storage.

• Appeal from a judgment of the District Court in the City of New York for the Eleventh Judicial District.

The facts are stated in the opinion.

*A.*Lamont, for appellant.

*Theall &*Beam, for respondent.

Bischoff, J.

Plaintiff was engaged in business in the City of New York as a woodworker and manufacturer of money-drawers, such business being conducted by Charles C. Shepard, his agent and father. About October 17th, 1888, plaintiff, by his agent, agreed to purchase certain desks of the defendant, also a woodworker, and delivered to the latter about 200 money-drawers of the value of $62, under the agreement that the same were to be applied towards the payment of the purchase price for the desks. Upon delivery of the desks, defendant refused to accept the money-drawers, claiming that the same were not as represented. Plaintiff thereupon paid for the .desks and demanded return of the money-drawers. Such return was refused by defendant, who claimed a right to detain ,the money-drawers until payment to him of a claim for storage thereof. Thereupon plaintiff brought suit for conversion against the defendant in the Eleventh District Court, which resulted in a judgment in favor of the defendant dismissing the complaint, from which plaintiff has appealed to this court.

*533Upon the trial, the only witness examined was Charles C. Shepard, and his testimony sufficiently established his agency for the plaintiff, the delivery of the money-drawers to the defendant under the agreement above stated, the rescission of such agreement, the ownership of the money-drawers in the plaintiff, the value thereof, and the demand for return and refusal prior to the commencement of the action. Proof of an agreement between the parties that the defendant should have a lien on the money-drawers in question is entirely wanting, and the trial justice therefore erred in dismissing the complaint.

A lien, or right to detain chattels until payment of certain charges, can exist only at common law, by statutory provision, usage, or express agreement between the parties *(Alt*v. Weidenberg, 6 Bosw. 178 ; *Grinnell*v. *Cook,*3 Hill 491,492).

At common law such lien was never extended to the case of a mere vendee, and the evidence upon which the present appeal is to be determined shows neither usage nor an express agreement in defendant’s favor. Neither is there any statute by which the right of lien claimed in the present case is conferred. The declaration of plaintiff’s agent at the time of the first demand for the return of the money-drawers, and in response to the defendant’s claim for storage, that he would pay “ what was right,” does not indicate an intention that defendant should have a right of detention until the payment of such storage charges. If that declaration subjects the plaintiff to liability for storage, the defendant must be remitted to his ordinary remedy to recover the amount in an action at law.

‘ It was therefore the duty of the defendant, when the agreement to accept the money-drawers in part payment for the desks was rescinded by mutual consent, to return the same upon demand, and his refusal so to do subjects him to liability for conversion *(Norton*v. *Dreyfuss,*106 N. Y. 90.)

The judgment appealed from should be reversed, with costs, and a new trial ordered.

Judgment reversed and new trial ordered, with costs.

Bookstaver, J., concurred.