International Harvester Co. v. Mahacek, 48911

• Decision Date: 28 January 1986
• Docket Number: No. 48911,48911
• Citation: 705 S.W.2d 603
• Parties: INTERNATIONAL HARVESTER CO., Plaintiff/Respondent, v. Donald MAHACEK, D.E.M. Truck Service, Inc., Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 603

705 S.W.2d 603

INTERNATIONAL HARVESTER CO., Plaintiff/Respondent, v.Donald MAHACEK, D.E.M. Truck Service, Inc., Defendants/Appellants.

No. 48911.

Missouri Court of Appeals Eastern District.

Jan. 28, 1986.

Motion for Rehearing and/or Transfer

Denied March 4, 1986.

James M. Martin, Martin, Bahn & Cervantes, St. Louis, for defendants/appellants.

Thomas M. Walsh, Suelthaus, Kaplan, Cunningham, Yates, Fitzsimmons & Wright, P.C., St. Louis, for plaintiff/respondent.

CRIST, Judge.

RespondentInternational Harvester Co.(IH) brought this action on account claiming charges for labor and materials furnished while performing certain repairs to appellant's (trucker's) truck.Trucker counterclaimed, seeking damages for wrongful detention of the truck.The cause was tried to a jury, which found against IH on its action on account, and for trucker on his counterclaim in the amount of $16,500.Upon a motion for new trial or in the alternative for a judgment notwithstanding the verdict, IH was granted judgment notwithstanding the verdict on trucker's counterclaim, because trucker failed to show he discharged the common law artisan's lien in favor of IH, and a new trial on IH's petition, on two grounds:

(1)"The verdict of the jury in favor of defendants ... was against the weight of the evidence in that defendants admitted they owed plaintiff the sum of $4,469.58 on said claim." and

(2)"The jury verdict in favor of defendants ... was inconsistent with the admissions of the defendants that they agreed to pay $4,469.58 to plaintiffs on plaintiff's claim."Trucker appeals.

When reviewing a grant of judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to the jury's verdict, drawing all reasonable inferences in its favor.A judgment notwithstanding the verdict is only granted when the evidence and inferences so strongly militate against one party that reasonable minds could not differ.Commerce Bank of Lebanon, N.A. v. Berry, 692 S.W.2d 830, 831[1, 2](Mo.App.1985).When so viewed, the evidence in this case establishes trucker presented a submissible case, and therefore the court erred in granting judgment to IH.

Trucker first brought the truck in for service on September 21, 1979.Those repairs were paid for, but the truck continued to need service, and it was returned to IH on October 8, 1979.Examination revealed the truck had major engine problems.Trucker examined other possibilities, but finally agreed to have the engine rebuilt.IH gave trucker a price quotation of $4,469.58.IH claimed this quotation, which contained charges for work done by outside firms, miscellaneous parts which may or may not have been needed, and sales tax, was a mere "guesstimate;" trucker, pointing to the detailed nature of the quotation, understood it to be a firm bid for the work.Trucker authorized the work, which took several weeks, and checked on the progress of the work by repeatedly visiting the shop during that time.

When repairs were completed, trucker was informed the repair charges were in excess of $6,900.00, for which cash was demanded.Trucker offered to pay the $4,469.58 by charging it to his account, then he offered to pay $6,900.00 by charging it to his account, and finally, he offered to pay $4,469.58 in cash.Trucker testified he would have had to borrow the money to pay in cash, and his brother testified to his willingness to make the loan.All offers were rejected, and IH retained the truck claiming a common law artisan's lien securing the repair bills.

It is undisputed that a mechanic who performs authorized repairs on a motor vehicle retains a common law possessory lien on that vehicle to secure his charges.Poole v. McKeen, 654 S.W.2d 362, 364(Mo.App.1983).The lien is discharged by payment or tender of payment of the sum due.If there was an agreed price for the work, then payment or tender of payment of that sum discharges the lien and ends the right to possession.SeeOwens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26, 30-32(Mo.App.1976).IH directly posed the question in its converse instruction:

Your verdict must be for plaintiff on defendants' counterclaim if you believe plaintiff and defendants did not have an agreed price for plaintiff to provide the labor and materials requested by defendants.

The evidence was sufficient for the jury to find the parties agreed on a firm price.

IH claims, however, there was no tender of performance by trucker so as to discharge the lien.It is agreed tender of performance is generally necessary.SeeOwens, 544 S.W.2d at 30-32.However, the evidence in this...