Reich v. . Triplett

ClaeicsoN, J. At the close of plaintiff’s evidence, and at the close of all the evidence, the defendants made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we see no error. The question involved: Did the plaintiff, who had a lien for repairs, under C. S., 2435, and the common law, lose his lien as against the defendants, who claim under a prior recorded mortgage, when he was *681 induced to part with his possession by false and fraudulent representations of the owner? ¥e think not. C. S., 2435, in part, is as follows: “Any mechanic or artisan who makes, alters or repairs any article of personal property at the request of the owner or legal possessor of such property has a lien on such property so made, altered or repaired for his just and reasonable charge for his work done and material furnished, and may hold and retain possession of the same until such just and reasonable charges are paid,” etc. The statute further provides that, if the charges for repairs are not'paid, the property in a certain way can be sold to pay for the repairs. In Johnson v. Yates, 183 N. C., 24, it is held, at p. 21, that this statute “is applicable to any and all contracts by mortgage or otherwise subsequently made and entered into. ... A further consideration of the statute will disclose that the lien provided for can only arise when the alterations or repairs are made at the instance of the ‘owner or legal possessor of the property.’ ” From the statute and the construction put upon it in the Johnson case, supra, the plaintiff had a lien superior to the defendants’ mortgage for the repairs made on the automobile. At common law where a laborer repaired a wagon and surrendered it to the owner before payment, the laborer has no lien. Possession is necessary to the existence of the lien. McDougall v. Crapon, 95 N. C., 292; Tedder v. R. R., 124 N. C., 342. The lien on personal property given by this section applies when possession-is retained by the mechanic. Glazener v. Gloucester Lumber Co., 167 N. C., 676. If the mechanic or artisan surrenders possession of the property, he loses his lien. Block v. Dowd, 120 N. C., 402; Tedder v. R. R., supra; 17 R. C. L., at p. 606. In Auto Co. v. Rudd, 176 N. C., at p. 499, we find: “Defendant, in payment of the claim, gave plaintiff a check on the bank for the amount, importing a cash payment, and thereby plaintiff was induced to stir-render the possession of the car. Defendant, believing that the repairs had been of no benefit, stopped payment of the check, but when he does so he must restore plaintiff’s possession and put him in the position to enforce his mechanic’s lien for the amount due. No doubt the defendant had no fraudulent purpose in giving the check, and the jury have found that there was no actual fraud, hut having obtained possession of his car under a promise to pay cash, on refusal, he is estopped to resist enforcement of mechanic’s lien by reason of the possession thus acquired.” . In the present case the jury, under a careful and proper charge by the court below, setting forth every element for the jury to' pass on necessary to constitute fraud, found that plaintiff surrendered the pos *682 session of the automobile “upon false and fraudulent representations.” This finding makes the present ease similar, if not stronger for the plaintiff thazr the case of Auto Co. v. Rudd, supra. The possession of the automobile was not surrendered voluntarily and unconditionally. An analogous case, sustaining the view here taken, is McGill v. Chilhowee Lumber Co., 111 Tenn., p. 552, 82 S. W., 210, 37 C. J. “Liens,” sec. 57, at p. 336-7. From the position here taken as to the law applicable upon the facts in this action, we see no sufficient evidence on the record to sustain defendants’ contention that plaintiff waived the lien at the time he parted with the possession or in the delay in not repossessing the automobile. Under the facts in this case defendants are not bona fids purchasers of the automobile in controversy for value and without notice of the fraud. Although in their answer defendants set up the plea that they were bona fide purchasers for value and without notice, there is no evidence on the record to sustain this view. There is no evidence on the record that Hoffman purchased the automobile in controversy for value and without notice of the false and fraudulent representations made to plaintiff by the owner to obtain possession of the automobile. Baynes, it is admitted in the stipulation, owned the note secured by the chattel mortgage on the automobile at the time the repairs were made. It was in evidence that Baynes took possession of the automobile as the owner of the note secured by the chattel mortgage after the repairs were made, and sold same to defendant, Hoffman; but there is no evidence on the record that Hoffman purchased the automobile for value and without notice of the fraud. Brown v. Sheets, 197 N. C., at p. 273, 63 A. L. R., p. 1357. In fact, the defendants tendered no issue that Hoffman was a purchaser for value and without notice of the fraud. The issues submitted were proper and determinative of the controversy. We see no error in the charge of the court below. In signing the judgment in favor of plaintiff, we find No error.