¶1The facts in this case are substantially as follows: Plaintiff sold to the defendant Schutzman a machine upon a conditional bill of sale. Schutzman was an-operator in the shop of the defendant Leipzig. Schutzman defaulted in making payments upon the machine, and the plaintiff sent an employe to the shop of Leipzig, who identified the machine. The next day plaintiff sent two employes to get the machine. They were assaulted by workmen of Leipzig in his absence. Subsequently he returned, and the plaintiff’s employés testify that he told them that Schutzman had made him (Leipzig) responsible for the machine; that he was responsible and good for it. Just what was meant by this assertion is not clear. There is no evidence that he had acquired the rights of Schutzman within his lease, and there was no promise to assume the indebtedness of Schutzman and pay the same. No further payments being made on the purchase price, plaintiff brought this action to foreclose its lien, making Schutzman and Leipzig both defendants. Leipzig only appeared, and appeals from a judgment in favor of the plaintiff for a foreclosure of the lien to the amount of $30 and costs.
¶2The judgment should be affirmed, but modified. The defendant Leipzig certainly assumed some control over the property. The plaintiff clearly had a lien, and a right to foreclose it. The property being in the possession of Leipzig, it was proper that he should be made a party, so that his rights, if he claimed under Schutzman, should not be prejudiced; but, as there is no evidence that Leipzig had acquired the interest of Schutzman in the property, the judgment should be modified by providing that, if the property, when sold under the judgment, failed to satisfy the lien, costs, and expenses, the defendant Schutzman only should be liable for the deficiency.
¶3Judgment modified, by providing that if, upon a sale of the property, the proceeds thereof are not sufficient to satisfy the lien, together with the fees, expenses, costs, and disbursements, the respondent recover of the defendant Schutzman only the balance thereof remaining unsatisfied, and, as modified, affirmed, without costs of this appeal to either party. All concur.