Reeves & Co. v. Russell
| Citation | 148 N.W. 654,28 N.D. 265 |
| Decision Date | 08 May 1914 |
| Docket Number | 1905 |
| Court | North Dakota Supreme Court |
On petition for rehearing, September 9, 1914.
Appeal from a judgment of the District Court of Stutsman County Coffey, J.
Affirmed.
Lawrence & Murphy, for appellants.
The statute as applied by the trial court is a retroactive law impairing the obligations of a contract. Walker, Am. Law, pp 217-222; Yeatman v. King, 2 N.D. 421, 33 Am. St Rep. 797, 51 N.W. 728.
Acts creating liens cannot be construed retroactively, because they would defeat vested rights. 8 Cyc. 900; National Bank v. Jones, 18 Okla. 560, 12 L.R.A.(N.S.) 310, 91 P. 191, 11 Ann. Cas. 1041; Toledo, D. & B. R. Co. v. Hamilton, 134 U.S. 296, 33 L.Ed. 905, 10 S.Ct. 546; Crowther v. Fidelity Ins. Trust & S.D. Co. 29 C. C. A. 1, 42 U.S. App. 701, 85 F. 43; Yeatman v. King, 2 N.D. 428, 33 Am. St. Rep. 797, 51 N.W. 721; Kilpatrick v. Kansas City & B. R. Co. 41 Am. St. Rep. 758, note; Giles v. Stanton, 86 Tex. 620, 26 S.W. 615; 1 Jones, Liens, § 701.
"Nor shall any citizen or class of citizens be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens." State Const. § 20; Yeatman v. King, 2 N.D. 421, 33 Am. St. Rep. 797, 51 N.W. 728; Vermont Loan & T. Co. v. Whithed, 2 N.D. 82; Edmonds v. Herbrandson, 2 N.D. 270, 14 L.R.A. 725, 50 N.W. 970; Plummer v. Borsheim, 8 N.D. 565, 80 N.W. 690; State v. Julow, 129 Mo. 163, 29 L.R.A. 257, 50 Am. St. Rep. 443, 31 S.W. 781; State v. Walsh, 136 Mo. 400, 35 L.R.A. 231, 37 S.W. 1112; State v. Minor, 33 W.Va. 179, 6 L.R.A. 621, 25 Am. St. Rep. 863, 10 S.E. 285; People v. Marx, 99 N.Y. 380, 52 Am. Rep. 34, 2 N.E. 29; Cooley, Const. Lim. 6th ed. § 681; Sutherland, Stat. Constr. §§ 121, 137; Luman v. Hitchens Bros. Co. 90 Md. 14, 46 L.R.A. 393, 44 A. 1051; Moher v. Rasmusson, 12 N.D. 71, 95 N.W. 152; Jones, Liens, §§ 105, 106; First Nat. Bank v. Scott, 7 N.D. 312, 75 N.W. 254; Wright v. Sherman, 3 S.D. 290, 17 L.R.A. 792, 52 N.W. 1093; Miller v. Anderson, 1 S.D. 539, 11 L.R.A. 317, 47 N.W. 959; Owen v. Burlington, C. R. & N. R. Co. 11 S.D. 153, 74 Am. St. Rep. 786, 76 N.W. 302.
Appellant did not waive its mortgage. Intention to waive a lien will not be presumed in the absence of evidence clearly tending to show it. Muench v. Valley Nat. Bank, 11 Mo.App. 144; Stribling v. Splint Coal Co. 31 W.Va. 82, 5 S.E. 321; Wright v. Sherman, 3 S.D. 290, 17 L.R.A. 792, 52 N.W. 1093; Kansas City Sav. Asso. v. Mastin, 61 Mo. 435; First Nat. Bank v. Maxwell, 123 Cal. 360, 69 Am. St. Rep. 64, 55 P. 980; Ross v. Swan, 7 Lea, 467; Gardner v. New London, 63 Conn. 267, 28 A. 42; Smiley v. Barker, 28 C. C. A. 9, 55 U.S. App. 125, 83 F. 684; Armstrong v. Agricultural Ins. Co. 130 N.Y. 560, 29 N.E. 991; Linwood Park Co. v. Van Dusen, 63 Ohio St. 183, 58 N.E. 576; Hollings v. Bankers' Union, 63 S.C. 192, 41 S.E. 90; Crandall v. Moston, 24 A.D. 547, 50 N.Y.S. 145; Ripley v. AEtna L. Ins. Co. 30 N.Y. 138, 86 Am. Dec. 362; Bucklen v. Johnson, 19 Ind.App. 406, 49 N.E. 612; Re Auerbach, 23 Utah 529, 65 P. 488; Bennecke v. Connecticut Mut. L. Ins. Co. 105 U.S. 355, 26 L.Ed. 990; Freedman v. Fire Asso. of Philadelphia, 168 Pa. 249, 32 A. 39; Johnson v. Schar, 9 S.D. 536, 70 N.W. 838; St. Louis Electric Light & P. Co. v. Edison General Electric Co. 64 F. 997; Stiepel v. German American Mut. Life Asso. 55 Mo. 224; Maloney v. Northwestern Masonic Aid Asso. 8 A.D. 575, 40 N.Y.S. 918; Fairbanks, M. & Co. v. Baskett, 98 Mo.App. 53, 71 S.W. 1113.
R. G. McFarland, for respondent (Burt M. King, of counsel).
Appellant's brief should be stricken out, and not considered by the court, and the judgment should be affirmed because it contains no demand for a review of the entire case, or of any specified part. Supreme Court Rule XXVIII.; Wells, Jurisdiction of Courts, § 141.
There is no evidence that plaintiff had any right or title to or lien upon the plows mentioned.
It is immaterial whether Arbogast was the actual owner of the property, if he was in the legal possession of the same. Lambert v. Davis, 116 Cal. 292, 48 P. 123; Chuch v. Garrison, 75 Cal. 199, 16 P. 885; Scott v. Delehunt, 5 Lans. 372.
Defendants Boyle Brothers, while retaining possession of the property upon which they had labored and placed repairs, had a lien upon the same at common law, for their reasonable charges. McIntire v. Carver, 37 Am. Dec. 519, and note, 2 Watts & S. 392; Garr v. Clements, 4 N.D. 563, 62 N.W. 640; Hammond v. Danielson, 126 Mass. 294; Williams v. Allsup, 10 C. B. N. S. 417, 30 L. J. C. P. N. S. 353, 8 Jur. N. S. 57, 4 L. T. N. S. 550; Watts v. Sweeney, 127 Ind. 116, 22 Am. St. Rep. 615, 26 N.E. 680; Scott v. Delahunt, 65 N.Y. 128; Tucker v. Werner, 2 Misc. 193, 21 N.Y.S. 264; Meyer v. Berlandi, 40 Minn. 438, 1 L.R.A. 777, 12 Am. St. Rep. 663, 40 N.W. 513; White v. Smith, 44 N.J.L. 105, 43 Am. St. Rep. 347; Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761, 69 Am. St. Rep. 719, 74 N.W. 966; Kirtley v. Morris, 43 Mo.App. 144; Loss v. Fry, 1 N.Y. City Ct. Rep. 7; Herman, Chatt. Mortg. §§ 474, 535; Browne, Civil & Admiralty Law, p. 204; Jones, Liens, § 744.
The mortgagee expressly made the mortgagor its agent for the purpose of keeping said property in repair. Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 764, 69 Am. St. Rep. 719, 74 N.W. 966; Hammond v. Danielson, 126 Mass. 294; Kirtley v. Morris, 43 Mo.App. 144.
The mere granting of some additional remedy does not invalidate the law. 8 Cyc. 900, note 90; 36 Cyc. 1173, 1174; Bolton v. Johns, 5 Pa. 145, 47 Am. Dec. 404; Parkison v. Bracken, 1 Pinney (Wis.) 174, 39 Am. Dec. 296; Vermont Loan & T. Co. v. Whithed, 2 N.D. 82, 49 N.W. 318; Edmonds v. Herbrandson, 2 N.D. 270, 14 L.R.A. 725, 50 N.W. 970; Sasser v. Martin, 101 Ga. 447, 29 S.E. 281; Craig v. Herzman, 9 N.D. 140, on appeal 181 U.S. 548, 45 L.Ed. 994, 21 S.Ct. 703; Notes Dak. Rep. 162, 174; See Generally: Cowden v. Wright, 24 Wend. 429, 35 Am. Dec. 633; 38 Cyc. 1144, 1145, and notes; Quist v. Sandman, 154 Cal. 748, 99 P. 207; Michaelson v. Fish, 1 Cal.App. 116, 81 P. 662.
One who does not belong to the class that might be injured by a statute cannot raise the question of its validity. Red River Valley Nat. Bank v. Craig, 181 U.S. 558, 45 L.Ed. 1000, 21 S.Ct. 703, and cases cited.
Plaintiff corporation brings this action to foreclose its chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith's lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been a valid lien upon the property. On April 11, 1911, Russell wrote plaintiff for its written consent to a sale of the mortgaged engine, receiving a reply dated April 15, 1911, in effect withholding consent until it could investigate and until certain conditions were complied with. Russell, however, took no further steps to obtain such written consent, and sold it to Arbogast, for valuable consideration, who bought with notice of the encumbrance. Arbogast thereafter consulted Boyle Brothers, machinists, at Jamestown, as to repairing the engine, and one of them went to Russell's place, where the machine still remained, and inspected the same as to the probable cost of overhauling, rebuilding, and putting it in suitable condition, and made an estimate that to do so would cost in the neighborhood of $ 800. Defendants Boyle Brothers, were then engaged by Arbogast, with the knowledge and acquiescence of Russell, to move the engine to the machine shop of Boyle Brothers for repairs and rebuilding the engine, which was thereafter completed at an expense for labor, material, and repairs and incidental expenses, totaling $ 882.11, and incurred between April 27 and May 26, 1911, and for which amount a blacksmith's lien was soon filed by Boyle Brothers against Arbogast, Russell, and the Reeves Company, by the filing of an affidavit of lien, accompanied with an itemized and verified statement of all labor and items of material and charge entering into the account. Written notice of this was at once given. Plaintiff thereupon demanded possession from Boyle Brothers, who had at all times since the completion of the work retained possession of the engine, and upon their refusal thereof the property was taken under warrant of foreclosure. Boyle Brothers in defense pleaded their artisan's lien and possession for the purpose of foreclosure thereof, and asked that their lien, claimed both under § 6295, Rev. Codes 1905, and chap. 168, Laws of 1907, be adjudged to be a prior lien to the mortgage of the plaintiffs. With this question of priority of liens, plaintiff seeks to raise the following questions: (1) Whether an artisan's lien takes priority over a mortgage of record on the property liened; and (2) whether chap. 168 of the Session Laws of 1907, amending § 6295, Rev. Codes 1905, passed after this mortgage lien had accrued, and in express terms declaring that "said lien shall have priority over all other liens, chattel mortgages, or encumbrances against said personal property," and providing the method for the perfecting of the artisan's lien without retention of possession of property, is constitutional. Appellant asserts said chap. 168 to be unconstitutional on several grounds alleged. For reasons hereinafter stated we find it unnecessary to pass upon any constitutional question, so...
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