Hodgdon vs. Waldron & a., 9 N.H. 66

Pahkeb, J. The evidence of what was said by Shapley, at the time of making the contract, cannot be received. It is parol evidence to vary the terms of a contract reduced to writing. 11 Mass. Rep. 27, Stackpole vs. Arnold; 2 N. H. R. 506, Wallace vs. Rogers. If it has any operation, it is to show that the real contract between the parties was, that if there was not snow enough to admit of hauling all the logs the plaintiff should haul but part—so many only as could be hauled while there was snow sufficient for the purpose. But the written contract was that he should haul all the logs by or before April.

By that he took the risk of snow. This evidence being rejected, it appears the plaintiff did not perform his contract. Had he performed it he might, perhaps, have had a lien upon the logs for the price of his labor ; but this is not clear upon the facts found in the case. Common carriers have a lien for the price of transportation of goods. So owners and masters of vessels have a lien for freight upon goods transported. And in general , bailees for hire have a lien for the price of work done, and the expense incurred, on the goods bailed to them. Metcalf's Yelverton 67, e, f.

But every person employed in transporting personal property of another from place to place, is not a bailee. It is not necessary, however, to settle whether the plaintiff could be so regarded. The plaintiff having failed to perform his contract, no lien can arise. According to decisions in some other states, he would not be entitled to compensation, and of course could have no lien. And here, although he may recover, under the decision in Britton vs. Turner, 6 N. H.

R. 481, the value of the benefit his employer has received ; the other party is entitled, if he elects, to have the damages he has sustained, by reason of the non-performance of the residue, deducted; and those damages being of uncertain amount, it is not only uncertain what the plaintiff is actually entitled to receive, but whether he will, in fact, on the adjustment be entitled to receive any thing. Under such circumstances he cannot be permitted to hold the goods, by virtue of a lien, until this is settled.

A lien for the price of labor and services performed, about goods bailed, is in the nature of an implied contract that the party who has performed the labor yhall hold the goods until he receives the pay for doing what he had undertaken to perform about them, at the request of the owner. Metcalf's Yelv. 67, e. But if he has not fully performed what he undertook to do, such a contract cannot fairly be inferred. And, besides, to allow him to hold the goods might in effect in many cases deprive the other party of the right to have the damages for the non-performance of the contract deducted.

He might be compelled to pay the amount demanded in order to gain possession of his goods. We are, therefore, of opinion that a lien cannot be held to attach where the duty has not been fully performed. Judgment for the defendants.