Alexander v. Mobile Auto Co.

• Citation: 76 So. 944,200 Ala. 586
• Decision Date: 15 November 1917
• Docket Number: 1 Div. 3
• Parties: ALEXANDER v. MOBILE AUTO CO.
• Court: Supreme Court of Alabama

76 So. 944

200 Ala. 586

ALEXANDER v. MOBILE AUTO CO.

1 Div. 3

Supreme Court of Alabama

November 15, 1917

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Assumpsit by the Mobile Auto Company against John Alexander. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Reversed and remanded.

Hugh M Caffey, Jr., of Mobile, for appellant.

Brooks & Crawford, of Mobile, for appellee.

THOMAS J.

This case presents the unusual question, whether the owner of personal property which he has contracted to sell can have a mechanic's lien thereon for repairs made at the request of the purchasing party in possession of the property.

The facts set out in the pleading are that appellee, Mobile Auto Company, contracted to sell appellant an automobile for $600 that most of the agreed purchase price was to be paid in 36 weekly installments. The contract in writing executed by the parties on March 6, 1915, contained the following stipulations:

"It is expressly agreed that the delivery of possession shall vest no title to said property in the party of the second part, but the full, complete, and absolute legal title shall be and remain in said party of the first part, their successors and assigns, until the whole of said purchase money be paid, and when the sum is fully paid, then the property to become the property of

the said party of the second part.

"Upon default of the party of the second part, and at any time thereafter so long as said default has not been corrected, the party of the first part may at its option either: (1) Repossess said property without notice or demand of any kind, in which event all payments made of the second part shall be considered rent, and shall be kept by the party of the first part, and all rights of the party of the second part hereunder shall terminate; or (2) sue for such amounts as may be due hereunder at the time of suit; or (3) treat all amounts to be paid hereunder as due and payable and sue for all such amounts; or (4) permit said default to continue for such period as the party of the first part may elect."

It was thus agreed that the legal title to the car should remain in the auto company until the whole of the purchase money should be paid, and then only should vest in Alexander, and that on "any default" the auto company might exercise any one of the aforesaid options. The evidence showed default in the weekly payments due on the purchase price after about $200 had been paid.

The plaintiff company's agent, or alter ego, who sold the car, and had the authority, for the company, to exercise the option secured to the owner under the contract, testified that he took the automobile back about September, 1915, and still had it in possession at the date of the trial, October 19, 1916. On cross-examination his further explanation of that possession was:

"At the time I took it back default had been made in the payment of several of the notes--in the May, June, July, and August notes, I am sure. Some of the notes that were past due had been charged back to his open account, and some were left to stand open as bills receivable. This was because of a change in bookkeepers. At the time I took this automobile back there had been default in the payment of some of the notes I now sue upon, and I took the automobile back before the beginning of this suit. I had the option upon default in the payment of any note to take the automobile back and charge all payments made on the notes as rent for the automobile. After I took the automobile the defendant came around for it, and I refused to let him have it."

On redirect examination witness' further explanation of that possession was:

"I refused to let defendant have the automobile in September or October, 1915, after the last work we did on it. I had the automobile in my possession. It was in the building. *** "

The record shows the following other interrogatories to and answers of this witness on redirect examination:

"Q. How did you happen to get possession of that automobile? A. He put it in the garage for repairs, and I asked the bookkeeper how much was due on it and he told me--Q. You say he left it there for repairs? *** A. Yes, sir. *** Q. Did you hold the car for the last repairs which were made, Mr. Hartwell? *** A. Yes, sir. *** Q. Has the value of the last repairs been paid to you? *** A. No, sir. *** Q. Did you have any conversation with the defendant at the time you held the car after the repairs were made? *** A. Yes. Q. Did you tell the defendant why you were holding it? *** A. I told him that the car was getting further in debt all the time, and I wanted the repair bill paid, and he said he couldn't pay it, that he was not making money, and I told him I would hold the automobile for the repair bill."

On recross-examination the witness testified:

"At the time defendant brought this automobile around for repairs I knew it was the same machine I had sold him under the conditional bill of sale. At the time I sold him the automobile for which these notes sued on were given I also sold him another car but by a separate bill of sale, and not under the same conditions."

It will be observed that the effect of this explanation was no more than that the car was left at the garage by Alexander "for repairs," that witness inquired of the bookkeeper, how much was due on it, and was told by the latter, and that he held the car for the "last repairs" which were made thereon by that company.

The fair import of this testimony, under the replication, is not that when the car was last placed in the garage for repairs the repairs were made, and the car was then held for charges, but that when it was left there for repairs it was held for the charges on account of the repairs last theretofore made thereon. That other repairs had been made on the car is to be inferred from the concluding statement of the witness:

"I told him [defendant] that the car was getting further in debt all the time, and I wanted the repair bill paid, and he said he couldn't pay it, that he was not making money, and I told him that I would hold the automobile for the repair bill."

Under the plaintiff's replication, if it be conceded that it was correctly pleaded to the effect that prior to taking possession of the automobile he was engaged in the business of blacksmithing and furnishing mechanical labor and material for the repairing of automobiles, and had contributed at defendant's request such labor and material for repairing defendant's automobile, for the value of which labor and material, to wit, $413.12, the defendant refused and still refuses to pay, etc., and that plaintiff became entitled to a lien on said automobile for said labor and material, and was entitled to hold possession of said automobile by reason of the lien, to this extent the burden was cast on the plaintiff. This burden the plaintiff has failed to meet, if the blacksmith's lien averred be that authorized under the statute. Code of 1907, §§ 4785-4789.

Appellee insists, however, that it had the lien given by the common law to a blacksmith authorizing the retention in his possession of the vehicle, machine, or article on which he has bestowed labor and furnished material until the reasonable charges therefor are paid. 2 Kent's Com. 635; J.C. Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694. As to this lien, the testimony wholly fails to show the nature of the repairs made or of the material furnished, or their reasonable value, and fails to show when they were completed, whether at some former time or at the time the automobile last came into, and was detained at, the garage by the artisan or mechanic for such repairs. This proof was necessary under appellee's insistence and pleading.

There can be no common-law blacksmith's lien without a continuous possession of the property repaired. It rests on this immemorial custom thought necessary to protect mechanics or artisans engaged in a public calling of the kind involving frequent dealings (and generally small amounts) with strangers, impecunious persons, or travelers, touching whose credit the artisan may know nothing and whom he may not see again.

This common-law right to retain the property until the lien is discharged is waived or lost by a release of the property without enforcement. This rule does not authorize the artisan or machinist to thereafter retake the property and hold it under common-law right. Such a course was not sanctioned by the immemorial custom now relied on by plaintiff, and would easily invite breaches of the peace. Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694; Voss & Co. v. Robertson & Co., 46 Ala. 483; Mobile B. & L. Ass'n v. Robertson, 65 Ala. 382, 390; Lickbarron v. Mason, 6 East, 21, 27; White v. Smith, 44 N.J.Law, 105, 43 Am.Rep. 347; Mathias v. Sellers, 86 Pa. 486, 27 Am.Rep. 723; 25 Cyc. 675 (4); 4 Mod.Am.Law, p. 124.

The defendant's cross-examination of witness Hartwell was shown to be relevant by the statement of counsel to the court:

"I expect to show that Mr. Hartwell does not know whether the repairs were made on this car or not; that some of the items were for old repairs and some new, and some for one car, and some for the other car. That is what I want to show."

The court committed error in sustaining plaintiff's objection to defendant's question as to the auto company's having made repairs on defendant's second car sold to him by that company. This witness had stated that the company sold to the defendant such second car at the time the car in question was contracted for, but that said second car was conveyed to the defendant "by a separate bill of sale and not under the same conditions." The...