Hollis & Ray v. Isbell

• Decision Date: 07 March 1921
• Docket Number: 21626
• Citation: 87 So. 273,124 Miss. 799
• Parties: HOLLIS & RAY v. ISBELL
• Court: Mississippi Supreme Court

87 So. 273

124 Miss. 799

HOLLIS & RAY v. ISBELL

No. 21626

Supreme Court of Mississippi

March 7, 1921

March 1921

BAILMENT. Liens. All liens created by law or by contract; lien for repairs subject to prior known lien.

All liens are created by law or by contract, and to establish a lien the contract must be made by the owner of the property upon which a lien is sought to be impressed. The contract may be expressed or implied. But, where a mechanic repairs property on which there exists a prior lien which he knows exists, his lien for repairs will be subject to the prior lien unless the facts show a waiver by the prior lien-holder or an implied contract to subordinate his lien to that of the mechanic. Broom v. Dale, 109 Miss. 52, 67 So. 659 L. R. A. 1915D, 1146, distinguished.

HON. D M. MILLER, Judge.

APPEAL from circuit court of Copiah county, HON. D. M. MILLER Judge.

Suit by Hollis & Ray against J. M. Isbell. Judgment for plaintiffs before a justice of the peace was reversed on appeal, and plaintiffs appeal. Affirmed.

Judgment affirmed.

R. N. Miller, for appellant.

We contend that this case is controlled absolutely by the case of J. A. Broom v. S. S. Dale & Son, 109 Miss. 52, 67 So. 659. It will be noted that in the case at bar the holder of the vendor's lien, Wm. Atkinson & McDonald Company had no notice that the car had been taken to Hollis & Ray for repairs.

This is the precise point on which the court below fell into error. These repairs were necessary in order to keep the car going and its repair was both in the interest of the owner Isbell and of the holders of the lien of chattel mortgage, Wm. Atkinson & McDonald Company.

We insist that the case supra of Broom v. Dale, was decided not on the ground that the holders of the chattel mortgage had notice of the repairs being made, but on the ground that the mortgagee had intrusted to the mortgagor an auto, which to run, the court judicially knows must have repairs, and that the mortgagee impliedly authorized the mortgagor as his agent to have made, and that such repairs were contemplated in the contract of sale and in having the repairs made, the owner, Isbell was made agent of claimants to have these repairs made for the mutual benefit of both mortgagor and mortgagee, and in such case common justice, equity and the commercial necessities of the case as put by Chancellor Kent, give the laborer a prior lien for such repairs.

This is the holding in the case of Broom v. Dale, and it is inconceivable how any other interpretation can be put upon that decision. We ask in the interest of both the owner and the mortgagee is it not the best public policy to give the mechanic his prior lien for his necessary repairs? The case of Broom v. Dale settles this question and shows by elaborate authority that at common law and in a great many states the prior right of the mechanic is upheld.

The unfortunate reference in that case to the fact that among other reasons, the court referred to the fact that the mortgagee had notice that the repairs were being made--was the thing that set the court below wild and made him overlook the whole reasoning of that very able opinion.

We submit, therefore, that this case, on the authority of that case, ought to be promptly reversed and Hollis & Ray given the judgment in the supreme court which they ought to have had here in the lower court. Reasoning is unnecessary; the way seems so clear that a circuit judge ought not to have erred therein.

J. F. Guynes, for appellee.

This case involves the sole question of priority of liens in a contest between the repairman and the conditional vendor of personal property. The mechanic who repaired the car in controversy voluntarily afterwards parted with its possession delivering it to the conditional vendee, Isbell who less than six months beforehand had purchased it of appellee, Wm. Atkinson & McDonald Company, and given his purchase money note therefor in which said company expressly reserved the title till said note should be paid. This case is important more for the principle involved than for the amount of money in this particular case.

The conditional vendor with title reserved in the note for purchase money is the legal owner of the property, has the legal title, and to the amount of his claim, has a lien recognized by the common law and upheld by the courts of all the states. The following are some of the cases in our own state: Duke v. Shaleford, 56 Miss. 552; McPherson v. Acme Lbr. Co., 70 Miss. 649; Watts v. Ainsworth, 89 Miss. 40, 42 So. 672; Clearly v. Morson, 94 Miss. 278, 48 So. 817; Corinth English & Boiler Works v. M. C. R. R., 49 So. 261.

It is a fundamental principle of the law that no man's property shall be taken from him except by his consent, express or implied. This court in numerous cases including those supra, and the courts of other states as well, have fully applied this principle to the protection of the lien of the conditional vendor, unless from the evidence it appears he has waived or forfeited his claim by some act that expressed or implied such consent. In the case of Columbus Buggy Co. v. Turley, 73 Miss. 529 and Broom v. Dale, 109 Miss. 52, hereinafter more fully discussed, we find instances where, by his own conduct, such consent is implied.

At common law the repairman's lien on personal property is based on and governed by the law of bailments, he being the bailee and the owner of said property repaired the bailor. Its a case of bailment for hire, for services to be performed on the property. The right of the bailee rests upon his contract, expressed or implied. All cases found anywhere hold that a contract is essential and a contract with the owner or his agent. While in a few cases of conditional sale or of chattel mortgage, the vendee or mortgagor in possession is held to be the implied agent, yet this is only where the conditional vendor or mortgagee knowingly permitting the vendee to have long continued use and possession together with use for the benefit of both and in case of conditional sales where the repairs are made with the knowledge of the vendor.

Most courts have put the chattel mortgage on the same basis as conditional sale. However few have gone further and after condition broken, have held the mortgagor in possession to have the implied permission to have necessary repairs made for the use and benefit of the mortgagor and mortgagee. In no court has the rule for conditional sales been thus applied, so far as I have found. Much confusion results from assuming the law to be always the same in both conditional sales and chattel mortgages. In the former no consent is implied except where the vendee has been in long continued use and the vendor knew that the repairs were being made, or does some act that estops him from denying his consent for the repairs to be made. Mere possession on the part of the vendee is not sufficient to bind the vendor. The repairman loses his lien for repairs by voluntarily parting with possession.

3. A review of the cases found would be well. Appellant relies upon that of Broom v. Dale, 109 Miss. 52. In this case the distinction between the conditional sale and the chattel mortgage is not so clearly made in discussing the cases cited to support the decision. However, all those cited in which the mechanic's lien is given priority were cases of chattel mortgages. A proper conclusion was reached on the facts of that case though much was said that was mere dictum. The facts of that case are briefly stated, thus, in the case at bar the automobile was in the possession of Mr. Polk, and being used by him with the knowledge and consent of appellees, which use continued for a long period of time. Appellees not only knew and consented to the general use of the automobile by Mr. Polk but also had knowledge that, in the course of his use of the property, he was having it repaired. Appellees, with this knowledge, made no objection to the repairs being made.

In summing up, the court further says, and from the making of such repairs with the knowledge of appellees we conclude that there was an implied authority and permission from appellees, etc.

In the Broom case, the vendee had been in possession for four years and long after the note was due. In the case at bar, the vendee had been in possession less than four months, the note was not due, and the vendor did not know the repairs were being made.

The case of Drummond Carriage Co. v. Mills, 54 Neb. 417 which was cited in the Broom case is one of chattel mortgage. The debt long past due, mortgagor had been permitted by the holder of the mortgage to have continued use of the vehicle for "a long period of time" and knew that the physician in possession had left it at the shop for repairs. Another case was that of Watts v. Sweeny, 127 Ind. 116, 26 N.E. 680, this, too, being a case of chattel mortgage. Here the engine and tender repaired had been left in the use and possession of the mortgagor for a long period of time, and after the debt was due. This was held to give implied authority for the mortgagor to have the repairs made. In Williams v. Allsup, 10 C. B. 417, we find also a vase of chattel mortgage. There are also many additional reasons growing out of commercial necessity, for instance, the ship being on its...