Martland

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action in claim and delivery.

For a given rate the defendant orally agreed to carry and transfer the furniture and goods of the plaintiff from a certain place “to and within a dwelling-house” on Fifth avenue, San Francisco. Defendant delivered and placed all the goods in said house except a piano. As to that article defendant transported it to the entrance of the place of delivery, but refused to deliver it until paid the amount of its charges, to wit, $28. At the time of such refusal plaintiff questioned the correctness of the bill, but informed defendant’s employees that he would pay it if they would perform the contract and place the piano within the house. Subsequently he renewed this offer in writing.

Under the provisions of section 3051 of the Civil Code the defendant had a lien on the goods of plaintiff for the services rendered in the carriage thereof, dependent upon possession.

The trial court found that the defendant was not entitled to be paid until the piano was delivered within the house. This accords entirely with our view of the ease. Under the attending circumstances, the…