Grusin v. Stutz Motor Car Co. of America

• Decision Date: 03 November 1933
• Docket Number: No. 26395.,26395.
• Citation: 187 N.E. 382,206 Ind. 296
• Parties: GRUSIN v. STUTZ MOTOR CAR CO. OF AMERICA.
• Court: Indiana Supreme Court

206 Ind. 296

187 N.E. 382

GRUSIN

v.STUTZ MOTOR CAR CO. OF AMERICA.

No. 26395.

Supreme Court of Indiana.

Nov. 3, 1933.

Appeal from Superior Court, Marion County; James M. Leathers, Judge.

Action by M. Grusin, doing business as M. Grusin Investment Company, against Stutz Motor Car Company of America.Judgment for defendant, and plaintiff appeals.

Affirmed.

Superseding opinion of Appellate Court in 179 N. E. 16.

Carey & Cox, of Indianapolis, for appellant.

Roemler, Carter & Rust, of Indianapolis, for appellee.

FANSLER, Judge.

The appellant brought an action to recover an automobile alleged to have been unlawfully detained by the appellee.The appellee, in addition to a general denial, filed an answer and a cross-complaint admitting the allegations of the complaint to the effect that the appellant had sold the automobile in question to one Penova, who had executed a mortgage thereon to appellant, but that Penova had retained possession of said property, and alleging further that Penova had employed appellee to make, and it had made, valuable and necessary repairs, and that it asserted and held a lien on said automobile for the value of said repairs.A demurrer to this answer and cross-complaint was overruled.The cause was tried by the court, who found the facts specially and stated conclusions of law thereon in favor of the appellee, and judgment was rendered accordingly.

The errors assigned involve the question of whether a repairman's lien on an automobile takes precedence over a prior executed and recorded chattel mortgage.

The court found that on the 8th day of February, 1928, Penova, the owner of the automobile in question, executed and delivered to appellant his chattel mortgage to secure the payment of $676.80 loaned to him at the time, which mortgage was duly recorded on February 14, 1928, in Cook county, Ill., the residence of the mortgagor.That the mortgage provides that upon failure to pay any monthly installment when due, all installments shall become immediately due and payable, and that mortgagee shall have the right to take possession of said automobile without notice.That it provides further that the mortgagor shall retain possession of the automobile until default is made, and that the mortgagor “shall keep said automobile in good repair at his own expense.”That Penova defaulted in payments in May, 1928, before the beginning of the action.That at the time the action was commenced there was due the appellant the sum of $523 with interest.That on June 1, 1928, Penova, without the knowledge or consent of appellant, placed the automobile in the hands of appellee to be repaired, and requested appellee to repair the same, and that appellee did perform the necessary work and furnish the necessary materials in repairing said automobile.That the reasonable value of said repairs is $936.62, which is unpaid and due, and that the repairs so made greatly increased the value of said automobile, and were necessary to keep said automobile in good condition.That appellee at the time of making said repairs had no actual knowledge that there were any liens or claims upon or against the automobile, and that appellant had no knowledge or information that repairs were being made until after the repairs had been made.That the appellee, after making the repairs, retained possession of said automobile until the same was taken away by the writ of replevin issued in the case, and that the appellant made due demand for possession of the automobile before bringing the suit, and that appellee refused to surrender possession.That the value of the automobile at the time it was taken by the writ of replevin on July 7, 1928, was $1,250.

Upon the findings the court concluded the law to be that the mortgagor, Penova, was the agent of the appellant in having the repairs made on the car.That the appellee is entitled to a common-law lien in the sum of $936.62, with interest from July 7, 1928, and is entitled to recover that amount, and that in the event it is not paid with interest in thirty days, the appellee shall be entitled to receive the possession of the car for the purpose of enforcing its lien against the same.

The common-law liens of artisans and mechanics are subordinate to those created by pre-existing recorded mortgages.There is an exception to this rule in the case of liens upon ships for necessary repairs, but although the analogy is apparent and the reasons for the exception seemingly as clear in the case of motor vehicles, it has never been applied to the latter.Where precedence is given to the common-law liens of mechanics and artisans over a prior and recorded chattel mortgage, it is based upon the express or implied assent of the mortgagee.Watts, Trustee, et al. v. Sweeney et al., 127 Ind. 116, 26 N. E. 680, 682, 22 Am. St. Rep. 615;Atlas Securities Co. v. Grove, 79 Ind. App. 144, 137 N. E....