Case 15 — Action to Enforce a 'Carrier’s Lien —

March 17.

#### Caye v. Pool’s Assignee.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

Judgment fob Defendant. Plaintiff Appeals.

Reversed.

Transfer Companies — Lien . for Charges — Delivery of Possession to Assignee for Creditors.

Held: 1. A person engaged in the business of carrying freight by wagons from depots to other places, and of delivering packages for all persons who choose to employ him, is a common carrier.-

2. Such a common carrier has a lien upon the goods for charges for hauling, and also for freight charges advanced to a railroad company for the consignee.

3. The rule that the carrier loses his lien by parting with possession of the goods does not apply where the person with whom.Cm contract was made makes an assignment for the benefit of his creditors, and possession is delivered to his assignee, as the as-signee takes fo.r the benefit -of all creditors according to their respective interests, and the lien of the carrier attaches to the money collected by the assignee on the assignor’s contract, in performance of which the assigne delivered the goods to another.

NEWTON G. ROGERS for appellant.

(No brief in record.)

*125R. C. KINKEAD foe appellee.

1. Plaintiff shows by his petition that he is an individual, using a corporate name, a drayman hauling freight from the depot in Louisville to his customers, and can' not he a common carrier in the meaning of the law.

2. He can not be subrogated -to the rights of the railroad company, and thereby acquire a lien upon the goods he hauls for the charges.

Opinion by

JUDGE PAYNTEB.

Reversing.

On demurrer, the averments of the petition are taken as true, which are to the effect that the appellant, Caye was carrying on business in Louisville, Ky., under the name and style of “Van Dyke Transfer ’Company”; that his business was to transport freight from- depots to places, and deliver packages through the city at various points, and for that purpose he had a large number of horses and mules, transfer wagons, drivers, etc.; that he is a common carrier. It is further averred that it was his practice in his business to advance freight for various ■people upon goods consigned to them, and deliver them, and collect the money so advanced, as well as money for transporting the same; that he advances such transfer charges to the railroads which may have transported the freight, etc. He avers that he had been doing business for John S. Pool as such common carrier; that it had been his practice to advance freight for him, and upon the full delivery of freight, Pool would pay for the deliveries, and also the amounts advanced by him. It is averred that prior to June 24, 1896, Pool had a contract with the estate of De Haven for the building and transporting of a granite monument of large dimensions; that it had been transported from Massachusetts by rail to Louisville; that the plaintiff had been hauling parts of the monument from the depot to Cave Hill Cemetery for the purpose of its *126erection; that on June 24, 1896, be bad advanced to Pool by paying freight against tbe monument $209.04, and bis bill for hauling was $115, making a total of $324.04; that on June 24, 1896; when Pool made an assignment for tbe benefit of bis creditors, be bad in bis possession a considerable portion of tbe monument, of tbe value of $800 or $900; that be. bad no notice that tbe assignment was made until tbe whole of tbe monument was delivered.

Tbe court sustained a demurrer to the petition. We are of tbe opinion that it states a cause of action. Tbe appellant was a common carrier. He was engaged in tbe business of transporting chattels for all persons who chose to employ and remunerate him therefor. Owners of stages, stage wagons, railroad cars, teamsters, cart-men, draymen, and porters are common carriers. Black, Law Diet.; 2 Kent, Comm. 597. 1 Bouv. Law Diet. p. 299, says that “stagecoach proprietors, railway companies, truckmen, wagoners and teamsters, carmen and porters,” etc., are common carriers; and cites Story on Bailments and Kent’s Commentaries to sustain tbe designation which be makes as to who are common carriers. Tbe appellant bad in bis possession part of tbe monument, of the value of $800 or $900, at tbe time tbe assignment was made, and held a lien upon it for tbe amount of his charges, and tbe assignment made by Pool for tbe benefit of creditors could not deprive him of that lien. Tbe trust estate received tbe full benefit of plaintiff’s claim for hauling and tbe freight advanced, and also had tbe benefit of that part of the monument which was delivered at tbe time of tbe assignment. Plaintiff’s lien followed tbe fund arising from tbe collection of tbe money on the monument contract in the bands of tbe assignee, and be is entitled to be paid out of it tbe amount ascertained to be due him.

*127A carrier has a lien upon goods and right of detention until the freight is paid. If he parts with the possession out of the hands, of himself and his agent, he loses his lien upon the goods, and can not afterwards reclaim them. Boggs v. Martin, 13 B. Mon. 243. When these goods wére assigned, they were not only for the general creditors of Pool, but for those who held liens upon the property assigned, so the assignee received the estate to be distributed according to the rights of the parties. He was acting in the trust capacity, and one of the beneficiaries of the trust was the appellant; so the delivery of the possession of the property to the assignee was for the benefit of all of Pool’s creditors, including appellant, according to their respective interests. The judgment is reversed for proceedings consistent with this opinion.