Finch v. Miller
Decision Date | 13 February 1975 |
Citation | 531 P.2d 892,271 Or. 271 |
Parties | James FINCH and Sadie Finch, dba Jim's Auto Service, Respondents, v. David MILLER and Vicki Miller, husband and wife, Defendants, Credithrift of America, Inc., Appellant. |
Court | Oregon Supreme Court |
Henry J. Bailey III, Salem, argued the cause for appellant. With him on the brief was Daniel J. Gatti, Salem.
No appearance for respondent.
The legal issue is whether plaintiffs' lien for repairs to Miller's Chevrolet automobile has priority over the prior perfected security interest of the defendant Credithrift in the same automobile.
ORS 79.3100 1 provides that a possessory lien for work on chattels has priority over a previously perfected security interest. 2 ORS 87.100 at the date pertinent to this case provided, in part:
3
Credithrift contends that a security interest perfected before a nonpossessory lien attaches has priority. Assuming this contention is correct, the question remains whether plaintiffs are claiming as nonpossessory or possessory lien claimants. Credithrift admits that if plaintiffs have a possessory lien, they are entitled to prevail under ORS 79.3100, quoted above.
Plaintiffs' complaint alleges that they repaired Miller's car at Miller's request. Plaintiffs further allege:
* * *.'
Credithrift filed a demurrer based upon the ground that the complaint did not state a cause of 'action.' The demurrer was overruled, Credithrift refused to plead further, and judgment was entered for plaintiffs. With this posture of the proceeding, the facts must be determined from the allegations of plaintiffs' complaint.
The essence of the allegations above quoted is the assertion that Miller took the car 'without the consent of the Plaintiff.' This fact leads into the next question: Is a possessory lien lost if the chattel is taken from the lienor without the lienor's consent?
The only statement of this court on the issue is in dictum in Yellow Mfg. Accept. Corp. v. Bristol, 193 Or. 24, 41, 236 P.2d 939 (1951):
* * *.'
This dictum states the accepted law. The Comment to § 80(1) of Restatement, Security, at 222, states:
'* * * The lienor, like the pledgee, does not lese his legal interest if he is deprived without his consent of his possession either by the bailor or a third person. * * *.'
The author of a comment in 17 Cornell L.Q. 279, 283, n. 23 (1931--1932), states the rule and the reason as follows:
* * *.'
The general rule was followed in General Motors A. Corp. v. Colwell Diesel S. & G., Inc., 302 A.2d 595 (Me.1973) ( )
We hold that the plaintiffs did not lose their possessory lien when Miller took the car from their possession without their consent.
Plaintiffs have confused their position by statements in their prayer. They prayed, 'For a decree declaring Plaintiffs' perfected lien represented by the notice of lien...
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