Ruppert v. Zang

• Decision Date: 26 February 1906
• Citation: 62 A. 998,73 N.J.L. 216
• Parties: RUPPERT v. ZANG.
• Court: New Jersey Supreme Court

62 A. 998

73 N.J.L. 216

RUPPERT

v. ZANG.

Supreme Court of New Jersey.

Feb. 26, 1906.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by Jacob Ruppert against John Tang. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued November term, 1904, before FORT and PITNEY, JJ.

William S. Stuhr, for appellant Weller & Lichtenstein, for appellee.

PITNEY, J. This was an action of replevin, in which the district court rendered judgment in favor of the defendant. The subject of the action was a wagon, detained by the defendant under claim of an artificer's lien. The facts are as follows: In July, 1903, the wagon was owned by one Hintze, who carried on a beer bottling business. He gave a chattel mortgage upon the wagon to the plaintiff, Ruppert. The mortgage was promptly recorded. The mortgagor was permitted to retain possession of the wagon, and continued to use it in his business. In September, 1903, it was greatly in need of repair, and was of very little value in its then condition. Hintze, the mortgagor, thereupon took it to the defendant to be repaired, without the knowledge or express consent of the mortgagee. The defendant did certain repair work, for which his charges amounted to $40.15, and he then turned the wagon over to a painter. In the agreed state of facts, it is set forth that it is "the custom of blacksmiths in such cases to attend to the painting." At the time of delivery to the painter, the defendant instructed him not to deliver the wagon to Hintze, since he claimed a lien upon it for the repairs. From the recital concerning the custom of blacksmiths to attend to the painting, and from the averment that the defendant gave instructions to the painter, we infer that the defendant was a blacksmith, and that it was a part of his employment under Hintze to procure the painting to be done necessary to complete the repairs. Indeed, it is tacitly admitted in the brief of counsel for the appellant that the man who did the painting was employed to do it by the defendant, and not by Hintze or by the plaintiff. It appears, however, from the statement of facts, that when the painter had finished his work, the plaintiff gave to him a check for his bill, and he delivered the wagon to Hintze without the | knowledge or consent of Zang, the defendant. The wagon was then worth between $125 and $150, and presumably had been much enhanced in value by the work done upon it by Zang. Thereafter, the wagon was in use by Hintze until December 22, 1903, when by virtue of a power of sale contained in the plaintiff's mortgage, one Wise, as his agent, took possession of It, and advertised it for sale, leaving it however, with Hintze as care-taker until the day of sale, which was set for December 28th. Meanwhile, on December 26th, the wagon again became broken, and Hintze delivered it once more to Zang for repairs, without the knowledge or express consent of the plaintiff, or of his agent, Wise. Zang knew nothing of the proceedings taken towards the sale of the wagon under the mortgage. He did further repairs upon it for which also he claims an artificer's lien. The sale was held on December 28th, as appointed, at which time the plaintiff purchased the wagon; it being then in the possession of the defendant. Upon refusal by the defendant of the plaintiff's demand for its possession, the present action was brought. The trial court held that the lien of the de fendant had priority over that of the mortgage, and on this ground rendered judgment in favor of the defendant.

The determination of the question of priority in favor of the...