Commercial Acceptance Corp. v. Hislop Garage Co.
Decision Date | 01 June 1937 |
Citation | 192 A. 627 |
Parties | COMMERCIAL ACCEPTANCE CORPORATION v. HISLOP GARAGE CO. |
Court | New Hampshire Supreme Court |
Transferred from Superior Court, Rockingham County; Lorimer, Judge.
Action of replevin by the Commercial Acceptance Corporation against the Hislop Garage Company. Transferred to the Supreme Court without a ruling.
Judgment for defendant.
Replevin, for an automobile. On August 6, 1929, Frank Horne, who had possession of the automobile as purchaser under a conditional sale contract with the plaintiff, engaged the defendant to make certain repairs on the car. The work was begun on that date, but before it was finished the defendant permitted Horne to take the car for a short trip on his agreement to return it to the garage that night. He returned it a day or two later and the repairs were then completed. The car was being held by the defendant on August 27, when the present action was brought. It is agreed by the parties that if the defendant had at that time a lien on the car for all labor performed and materials furnished, there shall be judgment for the defendant for $403.09, but if the lien was only for repairs made after Home returned the car, the judgment shall be limited to $20.14.
Transferred by Lorimer, J., without a ruling.
Jeremy R. Waldron, of Portsmouth, for plaintiff. John L. Mitchell, of Portsmouth, for defendant.
"Any person who shall, by himself or others, perform labor, furnish materials, or expend money, in repairing * * * any motor vehicle, under a contract expressed or implied with the legal or equitable owner, shall have a lien upon such motor vehicle, so long as the same shall remain in his possession, until the charges for such repairs * * * have been paid." P.L. c. 217, § 36. Under this statute, the garageman who repairs an automobile at the request of a conditional vendee has a lien thereon which, if preserved, takes precedence over that of the conditional vendor. New Hampshire Finance Corp. v. La Marche, 85 N.H. 205, 155 A. 697.
Continuous physical control of the property by a lienor is not in all cases a prerequisite to retention of the lien, and since the statute here invoked was designed "to enlarge the rights of those who perform work on motor vehicles" (New Hampshire Finance Corp. v. La Marche, supra), the phrase "so long as the same shall remain in his possession" should be liberally construed.
In the case of Smith v. Marden, 60 N.H. 509, 512, where the plaintiff claimed a lien on a cow for the charge of pasturage, Doe, C. J., declared:
By similar statutory construction, it has been held that a garage keeper does not lose his lien for storage and supplies by permitting the owner to use the stored car from time to time. 15-16 Huddy, Automobile Law (9th Ed.) p. 132, and cases cited in fifth cumulative supplement. Usually in such cases the "very nature of the bailment" presupposes "temporary release." Pacific, etc., Corp. v. Freitas, 113 Cal.App. (Supp.) 757, 769, 295 P. 804, 808. This is not ordinarily true, of course, where a car is taken to a garage to be repaired. Nevertheless the mere temporary surrender of the car by the repairman may not under all circumstances be sufficient to terminate the lien.
Section 35 of chapter 217 of the Public Laws, which provides that the garage keeper shall have a lien for storage and care, contains the same phrase relating to possession as that contained in section 36...
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