McCluskey v. De Long
| Decision Date | 18 November 1946 |
| Citation | 198 S.W.2d 673,239 Mo.App. 1026 |
| Parties | E. A. McCluskey and M. M. McCluskey, doing business as Fashion Cleaners, Laundries and Dyers, Appellants, v. Fred De Long, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Cole County; Hon. Charles H. Jackson Judge.
Reversed and remanded with directions.
D F. Calfee and Scott Peters for appellants.
(1) Defendant did not obtain any written memorandum of the work and material furnished, or to be furnished, on plaintiff's truck, signed by plaintiffs, or either of them; and defendant was not entitled to, and did not have any lien on said truck. Therefore, plaintiffs were entitled to the possession of their truck and replevin was the proper remedy. Sec. 3608, Revised Statutes of Missouri, 1939; Butterworth v. Soltz, (Mo. App.), 204 S.W. 50, 199 Mo. A. 507. (2) Plaintiff's petition is an ordinary claim in replevin. Riss & Co. v. Wallace, 171 S.W. (2), 641, l. c. 643; 350 Mo. 1208. (3) The Court committed error in entering judgment on this verdict and failing to set said verdict aside and grant plaintiffs a new trial. Harrington v. Interstate Securities Co., 57 S.W.2d 438, l. c. 439; Nichols v. Lead & Zinc Co., 85 Mo. A. 584. (4) The verdict of the jury was against the evidence, was manifestly and clearly for the wrong party, and was so unreasonable as to manifest passion and prejudice upon the part of the jury; therefore, the Court erred in failing to set said verdict aside and grant plaintiffs a new trial of said cause. Trent v. Barber, 56 S.W.2d 151.
Lauf & Bond for respondent.
(1) An artisan who provides labor and materials on a vehicle and who retains possession of the same has a lien on such vehicle for the amount of labor and materials furnished. The owner of the vehicle is not entitled to possession of it without first paying the artisan for the work and material so furnished such vehicle. Bostic v. Workman, 31 S.W.2d 218, 224 Mo.App. 645; Sections 3608, 3609, 3610, 3611, 3612, 3613, 3614, R. S. Mo. 1939; Butterworth v. Soltz, 204 S.W. 50, 199 Mo.App. 507; Rowles v. Paulson, 105 S.W.2d 31. (2) Defendant's counterclaim in the case grew out of the same transaction involved in plaintiffs' petition for replevin and destroyed plaintiffs' right to possession of the vehicle which plaintiffs sought to replevin, and, therefore, defendant's counterclaim was proper. Bostic v. Workman, 31 S.W.2d 218, 224 Mo.App. 645; Riss & Co. v. Wallace, 171 S.W.2d 641; Weber Implement & Automobile Co., v. Ransburg, 274 S.W. 856; Collins v. John Pfingsten Leather Co., 190 S.W. 990, 196 Mo.App. 611; McCormick Harvesting Co. v. Hill, 104 Mo App. 544, 79 S.W. 745, 750; Anthony v. Carp, 90 Mo.App. 387. (3) The new code for civil procedure provides full authority for the filing of a counterclaim in a replevin suit growing out of the same transaction or occurrences. Sections 73 and 74, Code for Civil Procedure, page 377, Laws of Mo. 1943. (4) Verdicts are not required to be in any particular form. They are required only to be certain and to be respond to all issues. When these requirements are met, the verdict is sufficient, however informal or crude may be the language in which it is couched. Weber Implement & Automobile Co. v. Ransburg, 274 S.W. 856; United Iron Works v. Twin City Ice & Creamery Co., 295 S.W. 109, 317 Mo. 125. (5) Statutes which are in derogation of the common law are to be strictly construed and no statute is to be construed as taking away from a party any right existing under the common law unless such construction is clearly required by the language of the statute. Bostic v. Workman, 31 S.W.2d 218, 224 Mo.App. 645; Bowles v. Abrahams, 65 Mo.App. 10; State ex rel v. McQuillan, 152 S.W. 347, 246 Mo. 517, 534; Perry v. Strawbridge, 108 S.W. 641, 209 Mo. 621, 635.
This is an action for the replevin of an automobile truck and equipment. The plaintiffs gave bond, the property was turned over to them by the sheriff and they were in possession of the same at the time of the trial. The petition alleges the value of the property sought to be recovered to be $ 350 and asks damages in the sum of $ 100 for its wrongful detention. Defendant filed a general denial and also a counterclaim wherein he sought to recover $ 245.70 for labor and materials furnished in repairing the truck in controversy. He did not ask for the enforcement of a lien. There was a verdict and judgment against the plaintiffs on their cause of action and in favor of the defendant, on his counterclaim, in the sum of $ 245.70. Plaintiffs have appealed.
Plaintiffs are brothers engaged in the cleaning, laundry and dying business. Defendant is engaged in the blacksmith and welding business. Plaintiffs were the owners of the truck in question which had been damaged in a wreck and needed repairing. The plaintiff, E. A. McCluskey, entered into an oral agreement with the defendant to repair the damaged truck. According to the evidence of the plaintiffs the cost of the labor and materials was not to exceed $ 300, which was to include the wages of a helper, whom the plaintiffs were to pay. According to the evidence of the defendant, "there wasn't anything said about an agreement on the price".
The damaged truck was delivered to defendant's place of business and, after it had been there for some time, a controversy arose between the said McCluskey and the defendant regarding the amount to be paid by plaintiffs for the repairs on the truck. At this time the work on the truck had not been completed. Plaintiffs had paid the defendant the sum of $ 140 and to his helper $ 124.50. There was no written order or memorandum given defendant by the plaintiffs for the work. As a result of the controversy regarding the amount to be paid for the repairs, plaintiffs contending that defendant had been overpaid for the work actually done and the defendant contending that the plaintiffs owed him a balance of $ 245.70 for work previously done, plaintiffs instituted this action in the circuit court seeking to recover possession of the truck and equipment. According to plaintiffs' evidence the truck is worth $ 2500 or $ 3500.
It is insisted by the plaintiffs that the court erred in overruling their demurrer to defendants counterclaim, their motion for a directed verdict, and in the giving of certain instructions on behalf of the defendant and the refusal of instructions on behalf of the plaintiffs, for the reason that defendant was not entitled to recover his counterclaim because he has no lien upon the truck and the equipment, and asked for none in his pleadings; that he has no lien because there was no written memorandum of the work and the materials furnished or to be furnished. Defendant insists that he has such a lien.
In support of this contention plaintiffs cite section 3608 Revised Statutes Missouri 1939, which provides:
We think there is no merit in plaintiffs' contention. This statute, it has been held, does not destroy the common law lien of an artisan who furnishes labor or materials in the repair of a vehicle while he is in the possession of the same. The purpose of the statute is to give the artisan a lien that he did not have at common law, in that, if he secures a written memorandum from the owner stating what is to be done, then the writing will continue the lien after the artisan has parted with its possession, providing a purchaser or other person takes possession with notice of the lien. ( Bostic v. Workman, 31 S.W.2d 218.) This is a decision by the Springfield Court of Appeals.
Plaintiffs rely upon the case of Butterworth v. Soltz, 204 S.W. 50, a decision by this court denying a lien. A reading of the opinion in that case shows that the owner of a vehicle, after it had been repaired by the defendant, obtained possession of it. (From all the opinion shows this possession was obtained lawfully.) Afterwards the artisan brought an action in replevin, claiming a lien. The artisan had no lien on the vehicle at common law for he had lost the possession of it. The opinion in that case contains language indicating that this court entertained the view that the statute abrogates the common law in reference to an artisan's lien on vehicles. What was said in that connection was not necessary for the determination of the case in view of the fact that the artisan had lost possession of the vehicle and, therefore, had no lien at common law, and none under the statute, because no written memorandum had been obtained. What was said in that case in reference to the statute repealing the common law is disapproved.
Plaintiffs insist that the matter set forth in the counterclaim constitutes no defense to plaintiffs' cause of action that no lawful defense was made to the suit and, therefore, it is not a proper subject of a counterclaim. The enforcement of a lien was not sought in the counterclaim but it merely asked judgment for the balance due for the work on the truck. It has been held that a counterclaim that does not tend to defeat or diminish plaintiffs' right of recovery of possession of the property does not lie. (Riss & Co. v. Wallace, 171...
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