McBride v. Beakley

• Decision Date: 08 May 1918
• Docket Number: (No. 1350.)
• Citation: 203 S.W. 1137
• Parties: McBRIDE v. BEAKLEY et al.
• Court: Texas Court of Appeals

Page 1137

203 S.W. 1137

McBRIDE v. BEAKLEY et al.

(No. 1350.)

Court of Civil Appeals of Texas. Amarillo.

May 8, 1918.

Error from Montague County Court; Homer B. Latham, Judge.

Suit by T. C. McBride against J. L. Beakley and F. C. Beakley. Judgment for plaintiff for amount claimed denying foreclosure of his lien, and he brings error. Judgment for amount claimed affirmed, and judgment denying a foreclosure reversed, and judgment rendered granting plaintiff such relief.

W. T. Russell, of Nocona, and Paul Donald, of Bowie, for plaintiff in error. Cook & Hall, of Montague, for defendants in error.

BOYCE, J.

This suit was brought by plaintiff in error, T. C. McBride, against defendants in error J. L. Beakley and F. C. Beakley, to recover a sum of money alleged to be due for labor and material used in connection therewith in repairing an automobile, owned by J. L. Beakley, and to foreclose a lien on the automobile repaired. Judgment was rendered for the amount claimed by plaintiff, but foreclosure of the lien on the automobile was denied on the ground that the lien was waived by the voluntary delivery of the automobile after the completion of the work thereon under circumstances hereinafter stated, and this action of the court below is the basis of the complaint of its judgment.

The said T. C. McBride, at the request of J. L. Beakley, did certain work on an automobile belonging to him; the value of the labor and material put in on the said job being the sum of $115.38. McBride's son, during the father's absence, allowed F. C. Beakley, son of J. L. Beakley, to take possession of said automobile, requiring the said F. C. Beakley upon such delivery to execute his note to T. C. McBride for the sum of $115. The judgment was against J. L. Beakley for the amount of the account, $115.38, with interest, and against F. C. Beakley on the note, with provision that payment on either judgment would discharge to that extent the judgment against the other. It was claimed on the trial that McBride's son had no authority from him to deliver the car without payment of the account; the father having left instructions with the son, who was in charge of his shop during his absence, to hold the car until the charges were paid. No issue of authority was submitted to the jury, and we will assume in support of the judgment that the court found against appellant on such issue. The jury found that McBride's son voluntarily delivered the car to F. C. Beakley. The evidence shows that this delivery was made on F. C. Beakley's request and statement that his father would pay the charges upon his return; he also being absent.

Article 16, § 37, of the Constitution, provides that:

"Mechanics, artisans and materialmen of every class, shall have a lien on the buildings and articles made or repaired by them for the value of their labor done thereon or material furnished therefor, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."

This provision is self-executing. It creates the lien in the cases provided without the further aid of legislation; the province of the Legislature being to provide for the speedy and efficient enforcement thereof. "The lien does not depend upon the statute, and the Legislature has no power to affix to that lien conditions of forfeiture." Strang v. Pray, 89 Tex. 525, 35 S. W. 1056; F. &amp M. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Howell v. McMurry Lumber Co., 62 Tex. Civ. App. 584, 132 S. W. 848; Beilharz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 109. While this provision of the Constitution has been most frequently under consideration in the courts, in connection with liens claimed by mechanics and materialmen on buildings, we see no reason to question its applicability in the present instance. We will refer later to the statutory provisions in relation to this subject.

A lien may be waived by express agreement or by implication from acts inconsistent with its continued existence. Cyc. vol. 25, p. 674; R. C. L. vol. 17, p. 606. It is said that:

"To sustain this loss of lien (that is by waiver) it must be placed on one or the other of two ideas; intentional waiver or from the loss of possession. As to the first, authority is abundant to show that one will not be held to waive a lien unless the intent be expressed or very plain and clear; the presumption is always against it." R. C. L. vol. 17, p. 606.

There was no express agreement in this case waiving the lien, and the taking of the note of F. C. Beakley did not have this effect. F. & M. Bank v. Taylor, 91 Tex. 78, 40 S. W. 880; Jones v. White, 72 Tex. 316, 12 S. W. 179; Southern Building & Loan Ass'n v. Bean, 49 S. W. 911; Myer v. Humphries, 47 S. W. 812. So that no waiver can be implied unless this results from the delivery of possession of the car. The authorities which hold that voluntary delivery by the lienholder of the possession of personal property to the owner operates as a waiver of the lien are confined to those cases where the existence of the lien itself is dependent upon such possession. The very existence of many of the common-law liens was by virtue of the possession of property by one having performed some service for the benefit of the property itself, or such possession acquired as an incident to the performance of some service for the owner of the property. Since possession in the first instance was essential to the lien, the right being to hold such possession until the charges were paid, it was logical to conclude that voluntary relinquishment of such possession amounted to a relinquishment of the lien. Fishell v. Morris, 57 Conn. 547, 18 Atl. 717, 6 L. R. A. 82; Jones on Liens, §§ 996, 997; R. C. L. vol. 17, p. 606; Cyc. vol. 25, p. 675; Corpus Juris, vol. 6, p. 1136. But, obviously, these authorities would not be applicable to those liens where possession was not an essential to the creation and existence of the lien itself.

Now, the provision of the Constitution which we have referred to does not seem to make the existence of the liens therein provided for in any wise dependent upon possession; the carpenter and materialman in most instances would not have possession of the building or the land on which it was being erected, a mechanic working on...