Gordon v. Sullivan, 10602.

• Decision Date: 18 January 1951
• Docket Number: No. 10602.,10602.
• Citation: 188 F.2d 980,88 US App. DC 144
• Parties: GORDON v. SULLIVAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 144, 188 F.2d 980 (1951)

GORDON v. SULLIVAN.

No. 10602.

United States Court of Appeals, District of Columbia Circuit.

Argued November 16, 1950.

Decided January 18, 1951.

Mr. Jacob N. Halper, Washington, D. C., with whom Messrs. Milford F. Schwartz and Leonard B. Sussholz, Washington, D. C., were on the brief, for appellant.

Mr. Ben Paul Noble, Washington, D. C., for appellee.

Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

This appeal requires us to construe the section of the District of Columbia Code which has to do with garage keepers' liens,¹ and to say whether appellant has, as he claims, a valid lien thereunder. The automobile in question was brought to appellant for repairs by McCarthy Decorating Company which held it under a conditional sale contract on which a balance of $1,600 was owed to Commercial Credit Company. This was in June, 1949.

After about one week the repair work was suspended pending receipt of certain parts and appellant delivered the car to Daniel J. McCarthy, president of the company, upon his agreement to return it so the work might be completed. McCarthy used the automobile for about three weeks, during which time appellant advised him the parts had been received. McCarthy did not return the automobile to appellant as he had agreed to do; but, "because he believed that the finance company was looking for the car," he stored it in his own name at the Shoreham Garage on July 9, 1949. On or about July 15, following a telephone call from one who identified himself as McCarthy and authorized the delivery of the car to the appellant, the Shoreham Garage released it to him, having collected from him the storage charges. McCarthy denied making the call. A short time before receiving the telephone message, the Shoreham Garage had refused to turn the car over to appellant's agent without McCarthy's consent.

Pursuant to an involuntary petition filed on July 18, 1949, McCarthy Decorating Company was adjudged a bankrupt on July 21, 1949. Schedules filed by the bankrupt on August 2 listed the appellant as a creditor to whom priority is secured by the Act, the indebtedness being approximately $600 for "auto repairs." A rule to show cause why the automobile should not be turned over to the receiver in bankruptcy was heard on August 4. The Referee in Bankruptcy held Gordon had released the automobile to McCarthy without any agreement for the lien to continue; that in the circumstances the delivery of the car to him by the Shoreham Garage did not give Gordon lawful possession; and that Gordon gave no written notice as to the amount of his charges and his intention to detain the car until the charges were paid. Having so found, the Referee concluded Gordon had not complied with the statute and so had no lien. He ordered the car turned over to the trustee. On petition to review, the United States District Court affirmed, saying,

"The finding by the Referee that possession of the car was regained by fraud requires that his order be affirmed * * *."

The statute provides, without qualification, that a garage keeper shall have a lien for his charges. It is unnecessary for him to give a notice or to take any other affirmative step to perfect or preserve it, as the notice is required by the statute only as a prerequisite to detention or enforcement. Barrett v. Commercial Credit Co., 1924, 54 App.D.C. 249, 296 F. 996. Gordon had a lien, therefore, by operation of law and did not lose it by failing to give the statutory notice.

The Trustee in Bankruptcy insists the lien was lost when Gordon permitted McCarthy to take the car. He says this is a common law possessory lien which is extinguished by any loss of possession, and which cannot be restored by a subsequent resumption of possession. While a garage keeper's lien partakes of the nature of a possessory lien because possession is essential to its enforcement, it differs from the common law lien in that its existence does not depend upon continuance of possession. This is so because, after declaring a garage keeper shall have a lien, the statute says he may detain the subject car whenever he has lawful possession of it, which means he may enforce the lien whenever he has such possession. Barrett v. Commercial Credit Co., supra. This clearly provides that reacquired possession revivifies the remedy — an idle provision if the lien itself has not survived. Thus a garage keeper who has repaired and released a car, without receiving his charges, may detain it for those charges when it is brought to him a second time, and if he chooses may then enforce his original lien.

Gordon's lien was not extinguished, therefore, when he released the automobile to McCarthy;² it was merely in a state of suspended animation while he was out of possession, since he could...