J. A. Broom & Son v. S. S. Dale & Sons

Reed, J., delivered the opinion of.the court. Appellants filed a petition against F. R. Polk to recover a balance owing on an account for repairs on an automobile in his possession and for materials used in such repairs. Appellants alleged that the work was done and the materials used for repairing and keeping in order the automobile, and they prayed the court to establish a mechanic’s lien thereon and order a sale for the satisfaction of the indebtedness. Appellees interpleaded, and alleged that they had sold the automobile to Mr. Polk; that notes were given to evidence deferred payments on the purchase price, in which notes title in the property was retained in appellees. They prayed that the automobile be sold, and that the balance owing them as shown by the notes — 58 — be paid first out of tbe proceeds of sale and before payment of appellants’ claim for repairs. The case was tried in the circuit court before the judge, jury being waived, upon an agreed statement of facts. The court gave judgment in favor of appellees deciding that their claim upon the automobile based on the title retained in the notes, was superior to that of appellants for labor and material used in making repairs thereon. We quote the agreed statement of facts as follows: “(1) That on the 20th day of June, 1911, S. S. Dale & Sons sold the automobile in controversy to F. R. Polk for the agreed price of seven hundred and seventy-five dollars and retained title in themselves to the aforesaid automobile as security for the purchase price thereof; that there is now due and unpaid on account of said purchase price the sum of' four hundred and sixty-five dollars, with interest thereon at ten per cent, per annum from the 20th day of June, 1911; that J. A. Broom & Sons have known at all times that, the said automobile had not been fully paid for by F. R. Polk as aforesaid; that said J. A. Broom & Sons do not question or deny the amount that S. S. Dale & Sons say that F. R. Polk is due them on account of this automobile, and the said automobile is of less value than the unpaid part of the purchase price for which title is retained; that S. S. Dale & Sons admit that the amount of ninety-five dollars and twenty-five cents claimed by J. A. Broom & Sons is just and correct against F. R. Polk for material furnished and repairs made to the automobile involved in this litigation; that S. S. Dale & Sons have been aware and were fully advised during such time as such repairs were being made and material furnished as aforesaid were being made and furnished as aforesaid; that S. S. Dale & Sons at no time ever objected to repairs being made, or material furnished for such repairs to the said automobile. — 59 — “Whereas, it is agreed by and between the attorneys for both parties that S. S. Dale & Sons retained a title in themselves for security for the purchase money of said automobile, and that they therefore have an equitable lien upon the said automobile for said purchase money to the amount now unpaid, and that the said J. A. Broom & Sons have a mechanic’s lien upon the said automobile for the amount due them as aforesaid for repairs made to and material furnished for the said automobile: “Wherefore the question submitted to the court for decision is as to whose lien takes priority; and both parties pray the court for an appropriate judgment defining their rights in the premises.” In this state, by statute (section 3075 of the Code of 1906) a mechanic is given the right to retain in his possession any article which he repairs until the price of his labor and material furnished in making such repairs shall be paid. The statute states that any article repaired shall be liable for the price of the labor and material employed in repairing" the same. Provision is made in the statute for the enforcement of the mechanic’s right, including a special order of sale of the property retained in his possession for the payment of the amount due. A mechanic, at common law, has a lien on all personal property for repairs. “Persons have by common law the right to retain goods on which they have bestowed labor, until the reasonable charges therefor áre paid.” 2 Kent’s Commentaries, 635. “In the absence of specific agreement, if a party has bestowed labor and skill on a chattel bailed to him for such purpose and thereby improved it, he has by general law a lien on it for the reasonable value of his labor or the right to'retain it until paid for such skill and labor.” Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N. W. 966, 40 L. R. A. 761, 69 Am. St. Rep. 719; Grinnell v. — 60 — Cook, 3 Hill (N. Y.) 491, 38 Am. Dec. 663. It was said by Mr. Kent in his Commentaries that “this right rests on principles of natural equity and commercial necessity.” ■ The statute (section 3075) does not create a new right or, lien for the mechanic’s benefit, but only declares the right and lien which he has at common law, and then provides a method for the enforcement thereof. In this case the automobile was intrusted by the party who had the lawful possession of it to the appellants to be repaired. By virtue of the labor done by appellants and the material used by them in making the repairs, they had the right under the common law, as well as under the statute, to retain possession thereof until they were paid their charges, and by the statute were given the right to subject the article by proper proceedings and through sale to the payment of the amount owing. Appellees, by retaining title to the notes given to evidence the purchase price, were placed in the position of a person holding a lien' or mortgage on the property. Mr. Polk occupied the position of mortgagor in possession. It is the general rule that the employment of the mechanic making the repairs should be by the owner of the property to be affected by the lien, or by his consent, express or implied; It has been held that the common-law lien of a mechanic for repairs under special circumstances may be superior to prior existing liens on property. 3 R. C. L., section 56, page —; Drummond Carriage Co. v. Mills, supra. We quote as follows from 3 R. C. L., section 56: “Thus where property which is liable to need re-, pairs is to be retained and used by a mortgagor for a long period of time, it will be presumed to have been the intention of the,parties to the mortgage that it is — 61 — to he kept in repair; and when the property is machinery, or is of snch a character that it must he instructed to a mechanic or machinist to make such repairs, the mortgagor in possession will he constituted the agent of the mortgagee to procure the repairs to he made; and as such necessary repairs are for the betterment of the property, and increase its value to the gain of the mortgagee, the common-law lien in favor of the bailee for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien.” In the case of Drummond Carriage Co. v. Mills, supra, a physician had executed a.chattel mortgage on a buggy used by him in his practice. He had repairs made on the vehicle in the shop of the carriage company. The party holding the mortgage knew that the physician used the baggy, and knew that he had left it in the shop for repairs. The court held that the carriage company making the repairs was entitled to its lien superior to the lien of the chattel mortgage. The court said that in cases where the mortgagor can be said to have express or implied authority from the mortgagee to procure repairs to be made on the mortgaged property that the lien of the mechanic should be superior to the chattel mortgage. . In the case of Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615, it was held that a mechanic who made repairs on a locomotive and tender had a lien which took precedence of that of the mortgagee where the property was permitted to remain in the possession and use of the mortgagor, and through such use it became necessary to repair it. We quote from the opinion in this case as follows: “When the mortgagee intrusts machinery of the character in controversy to the custody of the mort — 62 — gagor for a long period of time, to be used by the mortgagor in operating the railroad, it will be presumed against the mortgagee that all necessary repairs were contemplated, and the mortgagor was, in case of needed repairs, constituted the agent of the mortgagee in procuring such repairs, and in such case equity gives the mechanic a lien for his services and materials. The repairs add to the value of the property, and they are for the benefit of the mortgagee, as well as the mortgagor. “Where property is to be retained and used by the mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage, where it is property liable to such repairs, that it is to be kept in.repair; and when the property is machinery, or property of a character which renders it necessary to intrust it to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and add to its value to the gain of the mortgagee, the common-law lien in favor of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien.” In the leading case on this subject (Williams v. Allsup, 10 C. B. [N. S.] 417) a shipwright was permitted to detain a vessel for his charges for repairs as against a mortgagee under a prior mortgage. These repairs were made by the mortgagor’s directions without the knowledge of the mortgagee. Opinions were delivered in the case by several judges. We quote as follows from that delivered by Bvres, J.: ' “As it is obvious that every -ship will, from time to time, require repairs, it seems but reasonable, under — 63 — circumstances like these, to infer that the mortgagor had authority from the mortgagees to cause such repairs as should become necessary to be done, upon the usual and ordinary terms. Now, what are the usual and ordinary terms? Why, that the person by whom the repairs are ordered should alone be liable personally, but that the shipwright should have a lien upon the ship for the work and labor he has expended on her. Nor are the mortgagees at all prejudicially affected thereby. They have a property augmented in value by the amount of the repairs.” In the case at bar the automobile was in the possession of Mr. Polk, and being used by him with the knowledge and consent of appellees, which use continued for a long period of time. Appellees not only knew and consented to the general use of the automobile by Mr. Polk, but also had knowledge that, in the course of his use of the property, he was having it repaired. Appellees, with this knowledge, made no objection to the repairs being made. Prom the agreed facts in the case we understand that the repairs were such as were necessary to preserve the automobile and keep it in proper condition for its use. Repair means to restore, renovate, or mend an article; to keep it in good or sound condition. Repairs, in the ordinary sense, are made to prevent deterioration in an article, and to keep it up in its value and preserve it for the use intended. It was clearly the intention of the parties that Mr. Polk, the mortgagor, should continue in the ordinary use of the automobile. While being so used it was necessary to keep it in a sufficient state of repair. This would be not only to the benefit of the user, Mr. Polk, but by preserving the value of the property was also for the benefit of appellees as mortgagees. Prom the sole possession, control, and use of the automobile by Mr. Polk by agreement with appellees, — 64 — from the manner of its use and the necessity of repairing it to preserve it and keep it in running order and prevent its deterioration, and from the making of such repairs with the knowledge of appellees, we conclude that there was an implied authority and permission from appellees, as mortgagees, to Mr. Polk, as mortgagor, to have such repairs made, and that appellants have a paramount and superior lien to that of appellees on the property for the payment of the labor they performed and materials furnished in repairing it. Reversed, and judgment here in favor of appellants. Reversed.