Gale & Co. v. Hooper, 7774

• Decision Date: 20 March 1959
• Docket Number: No. 7774,7774
• Citation: 323 S.W.2d 824
• Parties: GALE AND COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. William HOOPER and Harry Hause, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 824

323 S.W.2d 824

GALE AND COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. William HOOPER and Harry Hause, Defendants-Respondents.

No. 7774.

Springfield Court of Appeals, Missouri.

March 20, 1959.

Dillard & Grossenheider, J. W. Grossenheider, Lebanon, for appellant.

O. C. Winchell, of Lebanon, for respondent Harry Hause.

McDOWELL, Judge.

This is an action in replevin by Gale and Company, a corporation, against William Hooper, owner, and Harry Hause, a garageman, for possession of a 1956 Oldsmobile.

The pleadings are not in question. The petition was in usual form.

The answer of Harry Hause consisted of a general denial and counterclaim under which Hause denied plaintiff's right to possession of the automobile claiming a common-law artisan's lien for repairs on said car in the sum of $288.76.

The cause was submitted to the court without a jury on a stipulation of facts supplemented by undisputed record testimony.

The evidence shows that William Hooper, a resident of Pulaski County, a soldier at Fort Leonard Wood, purchased from Yates Automobile, Inc., a 1956 Oldsmobile, and, as part payment, executed his note and chattel mortgage to secure the same, dated December 2, 1957, in the sum of $2,319.60, payable in 24 monthly instalments of $96.65 each. The mortgage and note were assigned to appellant, who caused the same to be filed in Pulaski County, Misouri. The defendant, William Hooper, delivered his automobile to the defendant-respondent, Harry Hause, a garageman, doing business in Lebanon, Missouri, requesting that certain repairs be made thereon; that pursuant to the owner's request respondent Hause made repairs and furnished labor and materials of the reasonable value of $288.76; that said amount of repairs so made was not paid by the owner and the car at all times remained in the possession of garageman, Hause.

The car was taken from respondent's possession and delivered to appellant by the Sheriff of Laclede County under writ of replevin. Defendant, Hooper, prior owner, is not involved in this appeal.

On these facts the trial court ruled that a Missouri artisan's common-law lien for labor and repairs on the automobile took priority over a prior recorded Missouri chattel mortgage and rendered judgment for respondent on plaintiff's petition and for respondent-defendant on his counterclaim and assessed his recovery at $286.11, or, in the alternative, ordered return of the property replevied to the respondent until the amount is paid at the option of defendant.

The only assignment of error complains of the ruling of the trial court that defendant's artisan's common-law lien, asserted in the counterclaim, is superior to and takes priority over appellant's prior duly filed chattel mortgage.

Under this assignment of error, the admitted facts and judgment of the trial court, the issue presents for our decision only the legal question of priority of liens.

Appellant says that under the laws of this state the plaintiff's duly filed chattel mortgage is superior to and takes priority over Hause's subsequent artisan's lien and that the judgment of the court is contrary to the evidence presented and to the law under the evidence.

To support this contention he cites sections 430.020, 430.040, and 443.460 RSMo 1949, V.A.M.S.

Sec. 430.020 provides a lien for storing materials and labor furnished on vehicle. It reads:

'Every person who shall keep or store any vehicle, part or equipment thereof, shall, for the amount due therefor, have a lien; and every person who furnishes labor or material on any vehicle, part or equipment thereof, who shall obtain a written memorandum of the work or material furnished, or to be furnished, signed by the owner of such vehicle, part or equipment thereof, shall have a lien for the amount of such work or material as is ordered or stated in such written memorandum. Such liens shall be on such vehicle, part or equipment thereof, as shall be kept or stored, or be placed in the possession of the person furnishing the labor or material.'

Under the holdings of the Missouri courts we find that this section pertaining to liens on a vehicle for labor and materials does not destroy the common-law lien of an artisan who furnishes labor and materials in repair of a vehicle while he is in possession of such vehicle. McCluskey v. De Long, 239 Mo.App. 1026, 198 S.W.2d 673, 675. We quote:

'We think there is no merit in plaintiff's contention. This statute, it has been held, does not destroy the common law lien of an artisan who furnishes labor or materials in the repair of a vehicle while he is in the possession of the same. The purpose of the statute is to give the artisan a lien that he did not have at common law, in that, if he secures a written memorandum from the owner stating what is to be done, then the writing will continue the lien after the artisan has parted with its possession, providing a purchaser or other person takes possession with notice of the lien. Bostic v. Workman, 224 Mo.App. 645, 31 S.W.2d 218. This is a decision by the Springfield Court of Appeals.'

In this opinion, Judge Bland of the Kansas City Court of Appeals comments upon a former opinion of that court, Butterworth v. Soltz, 199 Mo.App. 507, 204 S.W. 50, in which the court denied an artisan's lien. The court stated:

'* * * The artisan had no lien on the vehicle at common law for he had lost the possession of it. The opinion in that case contains language indicating that this court entertained the view that the statute abrogates the common law in reference to an artisan's lien on vehicles. What was said in that connection was not necessary for the determination of the case in view of the fact that the artisan had lost possession of the vehicle and, therefore, had no lien at common law, and none under the statute, because no written memorandum had been obtained. What was said in that case in reference to the statute repealing the common law is disapproved.'

Kirtley v. Morris, 43 Mo.App. 144, was decided by the Kansas City Court of Appeals in 1891, prior to the enactment of the statute in question. Plaintiff was a mortgagee of certain grading tools. His mortgage had been duly recorded. Defendant was a blacksmith who had repaired the tools at the request of the mortgagors, who were in possession. The repairs were made after the mortgage debt became due. Defendant refused to part with possession until his claim for repairs was paid and plaintiff instituted an action in replevin and obtained judgment in the Circuit Court. The question presented was, whether defendants had a lien and should it be held to have precedence over the prior mortgage by force of law. The court stated that by the common law in force in Missouri an artisan, who by his skill and labor, has enhanced the value of the chattel, has a lien upon it for reasonable charges. In its opinion, the court traced the history of common-law artisan's lien.

It was insisted by the plaintiff that a mortgagee, after condition broken, is the owner of the mortgage chattel, and that he did not consent or order the repairs and that no lien exists, but, the court stated that the mortgagee had the right of redemption and was permitted to retain possession and use of the chattel as that of his own; that the consent of the owner need not be expressed. It may be implied from the circumstances. It stated on page 149:

'* * * It was held that it was in the contemplation of the parties that the wagon could only be useful for the purpose for which it was used, by being kept in repair.

'* * * The nature and character of the property suggests that this permission must have been given for the purpose of such use of the articles as would be of value to those who used them. * * *

'So I conclude, that notwithstanding the ownership, with which the law in this state clothes a mortgagee after condition broken, if the property is of such character as suggests use, and that repairs will become necessary for its proper use or preservation, that it must be held to be in the contemplation of the mortgagee that it will be so repaired, and the enhancement of value thereby added will create a lien in favor of the workman superior to the mortgage. * * *'

The judgment in that case was: A Missouri artisan's common-law lien for repairs made on a chattel took precedence over a prior recorded Missouri chattel mortgage.

In Stone v. Kelley & Son, 59 Mo.App. 214, 215, Judge Ellison, speaking for the Kansas City Court of Appeals, in a matter where an agister's lien for the keeping of a horse was being considered, made this statement on page 217:

'* * * We decided in Kirtley v. Morris, 43 Mo.App. 144, that an artisan had, in this state, a common law lien for repairs of chattels made at the request of the mortgagor in possession which was superior to the lien of the mortgagee under a prior mortgage.'

This holding was cited with approval in Mack Motor Truck Corporation v. Wolfe, Mo.App., 303 S.W.2d 697, 699.

Sec. 430.040 RSMo 1949, V.A.M.S., reads

'1. No person shall have the right to take any such vehicle, part or equipment thereof, or any such horse, mule or other animal out of the custody of the person having such lien, except with the consent of said person, or upon paying the amount, lawfully due, for keep, storage, labor or material.

'2. Such lien shall be valid against such vehicle, part or equipment thereof, or against such horse, mule or other animal in the possession of any person receiving or purchasing the same, with notice of the lien claim; provided, however, that such lien shall not take precedence over or be superior to any prior lien on said property, created by any chattel mortgage on the same, duly filed or recorded in accordance with the laws of this state, without the written consent of the mortgagee or the legal holder of said chattel mortgage.'

This statute was passed in 1917, two years after the passage of Sec. 430.020, heretofore set out.

In Bostic v....