One with whom materials are left for manufacture has a lien on them for his work; such lien is not waived by a special agreement for the amount to be paid for the work; and replevin cannot be maintained for such manufactured materials until payment or tender of the charges. R EPLEVIN. judgment. The opinion states the facts. Plaintiff had B. M. Boyer and J. Wright Apple, for plaintiff in error. James Boyd, for defendant in error. WOODWARD, J. In the fall of 1872, Sellers & Radey, the plaintiffs below, entered into an agreement with Mathias, the defendant, to furnish him with tobacco at prices that were specified. This tobacco was to be worked up by the defendant into cigars of such kinds and brands as the plaintiffs, from time to time, should desig nate. Fixed prices for the manufacture of the cigars, according to their quality, were to be allowed, and advances were to be made by the plaintiffs to the defendant for stamps and wages as the work should be done and the cigars be delivered. On the 6th of November, 1873, the defendant had manufactured 90,000 cigars, which were in his possession. The stamps for them were procured and paid for by the plaintiffs, who alleged at the trial that an agreement was then made with the defendant by which they were to take them away when stamped, and a full and final settlement was afterward to be made. Under this agreement the plaintiffs insisted that the right the defendant possessed to retain the cigars as security for the balance due for their manufacture had been waived. There was conflicting evidence on this branch of the case, the defendant denying the existence of the supplementary agreement. The question was one of fact for the jury, but it does not appear to have been submitted. As the court held that the defendant was not in any event entitled to a lien, it became unimportant to ascertain whether it had or had not been waived. Mathias v. Sellers. When the replevin issued, the balance of the account of the plaintiff against the defendant was $2,585.40. This sum included $450 paid for stamps on the 6th of November, 1873, and $54.65 paid to the sheriff, apparently for expenses in the action. The value of the 90,000 cigars the defendant had made was shown by the testimony to be $2,820. Including in the charges against him the $54.65 paid to the sheriff, there was due to the defendant, therefore, the sum of $234.60. Suit was brought without payment or tender of the amount, and the court charged at the trial that the existence of a balance, for work done in manufacturing the cigars, did not defeat the right of the plaintiff to maintain the action. It has long been a settled rule of the common law, that goods deposited with a trademan or artisan for manufacture or repair, are subject for the work done on them to a specific lien. Thus, a tailor who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he is paid for his services. Neither is a ship carpenter bound to restore the ship which he has repaired; nor a jeweller the gem which he has set, or the seal which he has engraved; nor an agistor the horse which he has taken on hire, until their respective compensations are paid. Story on Bailments, § 440, and the cases there cited. Though the right of lien probably originated in those cases in which there was an obligation, arising out of the public employment, to receive the goods, it is not now confined to that class of persons. A particular lien is given by the common law to any one who takes property in the way of his trade or occupation, to bestow labor and expense upon it. And it exists equally whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price. 2 Kent's Com. 635. It was said by HOLROYD, J., in Crawshay v. Homfray, 4 Barn. & Ald. 50, that the principle laid down in Chase v. Westmore, 5 Maule & Selw. 180, where all the cases came under the consideration of the court, was this, that a special agreement did not of itself destroy the right to retain; but that it did so only where it contained some special term inconsistent with that right. In 2 Selwyn's Nisi Prius, 540, the rule is stated to be, that the right of detaining a thing until the money due upon it be paid, may be waived by a special agreement as to the time or mode of payment; but not merely by an agreement for the payment of a fixed sum. The existence of the principle in its full reach has been recognized in Pennsylvania. McIntyre v. Carver, 2 W. & S. 392. Mathias v. Sellers. was a replevin for thirty-four panel doors, which McIntyre had made from lumber delivered to him by Carver. The suit was brought without payment or tender of payment for the work McIntyre had done; but while it was pending, the money was offered and received. It was held that the tender and acceptance came too late to help the plaintiff. "The suit was brought," Chief Justice GIBSON said, in entering the judgment, "before the right of action was complete, and such a defect cannot be cured by any subsequent act, except a binding agreement not to take advantage of it." In Pierce v. Sweet, 9 Casey, 151, it was decided that a bailee, to whom logs had been delivered to be converted into boards, had a lien on them for his labor independent of any special agreement; and that he could maintain an action against an execution creditor of the bailor by whom they had been taken out of his possession. It is clear, under all the precedents, that unless the defendant here waived his lien by some such new agreement as that which the plaintiffs set up at the trial, he had the right to retain the cigars in controversy until he was paid for the work he had done in making them. Nothing that was decided in Macky v. Dillinger, 23 P. F. Smith, 85, was in conflict with the settled law of lien. Dillinger consigned goods to Moorehead, who advanced $1,500 on them, and then pledged them, with other property, to Macky, to secure a loan for $3,700. Macky knew they belonged to Dillinger. When they were demanded by Dillinger, Macky refused to deliver them except on the condition that this loan to Moorehead should be paid. Nothing was said at the time of Moorehead's advances, and in the action of replevin which Dillinger brought, it was held that Macky had no right to set up Moorehead's lien in his own defense; that as against him Dillinger could maintain his action without tendering repayment either of the loan made by himself or of the advances made by Moorehead; and that the amount of the advances could be recouped from the damages Dillinger was entitled to recover. The decision was stated in the opinion of the present chief justice to rest on the general doctrine of tender, that when a party declines to accept payment or performance, except in a particular way to which he is not entitled, he cannot insist that the action is prema turely brought." 66 [Omitting a question of pleading.] Judgment reversed and venire facias de novo awarded. Two months after marriage a wife whose hearing and speech were defective, whose health was infirm, and whose mind was weak, conveyed all her real estate to her husband, for the consideration of one dollar, reserving a life estate. In the absence of affirmative evidence that her action was intelligent and free from undue influence, and that his conduct was fair and conscionable, held, that the transfer was void. * BILL ILL against several to compel performance of an award. The opinion states the facts. On the point in question, the complainant was defeated. Joseph J. Lewis and Wayne Mac Veagh, for appellant. Abner Pyle, William M. Hayes, and George W. Biddle, for appellees. TRUNKEY, J. An act or a contract, though not originating in any evil design or contrivance to injure another, yet tending to deceive and mislead, or violate private confidence, is a constructive fraud, equally reprehensible with actual fraud and prohibited by law. Constructive fraud often exists where the parties to the contract have a special confidential or fiduciary relation, which affords the power and means to one to take undue advantage of, or exercise undue influence over the other. Wherever, from such relation, considerable authority or influence necessarily exists on the one side, * See Pierce v. Pierce, ante, p. 22, and note, p. 26. In Boyd v. De la Montagnie, 73 N. Y. 502, the same doctrine was held, the court observing: "It is not found that the defendant acted with a fraudulent intent in procuring the transfer, but I do not understand that this is necessary in this class of cases. A court of equity will interpose its jurisdiction to set aside instruments between persons occupying relations in which one party may naturally exercise an influence over the conduct of another. A husband occupies such a relation to the wife, and the equitable principles would apply to them in respect to gratuitous transfers by the wife to the husband, however it might be in ordinary business transactions which the wife may legally engage in. Where this relation exists the person obtaining the benefit must show, by the clearest evidence, that the gift was freely and deliberately made. The burden is upon the person taking the gift to show that the transaction was fair and proper. Sears v. Shafer, 6 N. Y. 268; Hoghton v. Hoghton, 15 Beav 278; Ford v. Harrington, 16 N. Y. 285; 2 New. 384; Coutts v. Acworth, L. R, 8 Eq. 558-567; Burnaby v. Griffin, 3 Ves. 266." Darlington's Appeal. and a corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence by extracting any advantage to himself. A transaction between persons so situated is watched with extreme jealousy and solicitude, and if there be found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party. Owing to the near connection between the parties, in many relations, the transaction in itself is considered so suspicious as to cast the burden of proof upon the person who seeks to support it, to show that he has taken no advantage of his influence or knowledge, and that the arrangement is fair and conscientious. For instance, the relation between attorney and client gives rise to great confidence and to very strong influence by the attorney over the actions, rights and interests of his client. The attorney is presumed to have the power to gain by the necessities, good-nature, liberality and credulity of his client, and to obtain undue advantages, bargains and gratuities. Hence the law often interposes to declare transactions between them void, which between other persons would be unobjectionable. This doctrine is said to rest upon the importance of preventing a general public mischief, which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties. The principle, that, while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotiations of the former, supersedes the necessity of any inquiry into the particular means, extent and exertion of influence in a given case, a task often difficult and ill-supported by evidence, which can be drawn from any satisfactory sources. On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client; and, on the other hand, it is not necessarily void throughout, ipso facto. But the burden of establishing its perfect fairness, adequacy and equity, is thrown upon the attorney. If no such proof is established, courts of equity treat the case as one of constructive fraud. In dealings between principal and agent, or guardian and ward, or trustee and cestui que trust, the same principles prevail with a larger and more comprehensive efficiency; and the burden of proof is upon the agent, the guardian, or the trustee, who claims a benefit arising from the transaction, to show the utmost good faith on his part, that he took no advantage of his influence or |