462. Enforcement by Common Carrier of Lien upon Perishable Property.

If, from any other cause than a want of ordinary care and diligence on his part, a common carrier is unable to deliver perishable property transported by him, and collect his charges thereon, he may cause the property to be sold in open market to satisfy his lien for freightage.2

2 Civ. Code, sec. 2204. New section in effect July 1, 1874.

CHAPTER 8.

AGISTOR'S AND STABLE-KEEPER'S LIEN.

463. Who lienor.

463. Who Lienor.1

Livery or boarding or feed stable proprietors and persons pasturing horses or stock, at the instance of the owner or his agent,2 have a lien dependent on possession for their compensation in caring for, boarding, feeding, or pasturing such horses or stock.

1 Civil Code, section 3051, second sentence, in effect May 28, 1878, so provides, omitting the phrase "at the instance of the owner or his agent."

Historical.-Statutes of 1869-70, chapter 494, in effect April 4, 1870, provided: "The proprietors of stables and ranches or farms shall have a lien on all livestock pastured, kept or fed by them, under contract with the owners thereof, for the amount and value of the care, feed or pasture of such livestock, and shall be entitled to recover and hold possession of such livestock until the amount of such lien shall be paid." Section 2 of the same act provided for the foreclosure of the lien. In Johnson v. Perry, 53 Cal. 351, the court held that this statute was not repealed by the codes, so that it remained in force until superseded by the above code provision.

At the common law an agistor had no lien. In Lewis v. Tyler, 23 Cal. 364, the court said: "An agis

tor of cattle is under no legal obligation to take the charge of or keep any cattle that may be brought to him for that purpose. He may receive or refuse them without violating any duty or obligation imposed on him by the law; and he is at perfect liberty, therefore, to impose such terms and conditions as he may deem proper. And he may require an agreement that he shall have a lien upon the animals for his reasonable charges, or for the agreed price, if he shall deem it necessary for his security. That class of bailees, however, who are required by law to take the charge and custody of and to keep animals for others, have no right to impose conditions upon those who employ them; and the law, therefore, very properly gives them a lien upon the property for their security. That reason does not exist in the case of agistors of cattle, and therefore they have no lien, except where there is a special agreement.

2 At Special Instance of Owner.-In order for the lien to attach, it is necessary that the animal be placed with the livery-keeper by its owner, or someone having authority from him. "It has been held that the lien given by the common law to an innkeeper upon the horse of a traveler who becomes his guest will attach, although the guest may have stolen the horse, but it is not believed that such a lien has ever been held to exist upon property placed with one who has a lien only by force of statute, by a person not the owner or the agent of the owner": Lowe v. Woods, 100 Cal. 408, 410-412, 38 Am. St. Rep. 301, 34 Pac. 959.

464.

465.

466.

CHAPTER 9.

LIEN OF DEPOSITARY FOR HIRE.

Who lienor.

Enforcement of lien.

Enforcement against perishable property, baggage, and luggage.

464. Who Lienor.

A depositary for hire has a lien for storage charges.1

465. Enforcement of Lien.

This lien is enforceable by a sale at public auction made in the same manner as a sale of pledged property.2

1 Civil Code, section 1856: "A depositary for hire has a lien for storage charges, which is regulated by the title on liens." New section, in effect March 31, 1891.

Compare Civil Code, section 3051, first sentence, as quoted under section 458, note 1, above.

2 See Civ. Code, sec. 1856, above.

The sections in regard to the sale of pledged property by the pledgee are appropriate to the sale of deposited property, because of the general similarity between pledgeholders and depositaries: Stewart v. Naud, 125 Cal. 596, 599, 600, 58 Pac. 186.

466. Enforcement Against Perishable Property,

Baggage, and Luggage.

If from any other cause than want of ordinary care and diligence on his part a depositary for hire is unable to deliver perishable property, baggage, or luggage received by him for storage, or to collect his charges for storage due thereon, he may cause such property to be sold, in open market, to satisfy his lien for storage; provided, that no property except perishable property shall be sold under the provisions of this section upon which storage charges shall not be due and unpaid for one year at the time of such sale.

Sale of pledged property: See sections 232 through 240, above.

So actual notice to the owner of stored goods is essential to the validity of the sale of stored goods by the depositary: Stewart v. Naud, 125 Cal. 596, 600, 58 Pac. 186.

3 Civil Code, section 1857, new section in effect March 31, 1891.