Shaw v. Webb

• Decision Date: 06 March 1915
• Citation: 174 S.W. 273,131 Tenn. 173
• Parties: SHAW v. WEBB.
• Court: Tennessee Supreme Court

174 S.W. 273

131 Tenn. 173

SHAW v. WEBB.

Supreme Court of Tennessee.

March 6, 1915

Certiorari to Court of Civil Appeals.

Action by J. W. Webb against J. W. Shaw. Judgment for plaintiff in the circuit court was affirmed by the Court of Civil Appeals and defendant brings certiorari. Reversed, with judgment for defendant.

WILLIAMS J.

Shaw sold an automobile to one Akers, the purchase price being represented in two notes, each of which contained a stipulation retaining title to the machine to secure payment. The machine passed at once into the possession of the vendee. Some time thereafter it became necessary to have some repairs made on it, and the automobile was taken to Webb, a mechanic about the date of the maturity of the first note. After the repairs were placed the machine was turned back by the mechanic to the conditional vendee, Akers. On default being made in the payment of the first maturing note, Shaw by writ of replevin repossessed himself of the machine. Suit was thereupon brought by Webb, the mechanic, against Shaw, the vendor, to enforce a claimed mechanic's lien on the automobile for the amount of the repair bill so created.

This action was predicated upon a recent statute (Acts 1909, c 150) which provides:

"That there shall be a lien upon any vehicle * * * for any repairs or improvements made or fixtures or machinery furnished at the request of the owner or his agent in favor of the mechanic, contractor, founder, or machinist who undertakes the work," etc.

Judgment was rendered in favor of the mechanic by the circuit judge, who tried the case without the intervention of a jury. On appeal that judgment was affirmed by the Court of Civil Appeals; and we are, by petition for certiorari, asked to review the judgment of the court last named.

The mechanic had no actual notice of the retention of title; and the conditional vendor did not know that the machine was placed with the mechanic to be repaired.

It is to be noted that we are not dealing with a claim by Webb to the artisan's common-law lien which depends for validity, as against third parties, upon the retention of possession on the part of the artisan. Here Shaw had parted with possession, after the repairs were made on the automobile, to Akers, the conditional vendee.

However, the few cases that pass upon the right of an artisan in possession and claiming such common-law lien as against a conditional vendor of the personalty repaired by analogy shed much light upon the point we have to decide.

In Baughman Automobile Co. v. Emanuel, 137 Ga. 354, 73 S.E. 511, 38 L. R. A. (N. S.) 97, we understand from the report of the case that such common-law lien was relied upon by a mechanic for repairs put by him on an automobile, under contract with a conditional vendee in possession, and the court held that the artisan's lien was subordinate to the right of the vendor, standing on his title retained. In that case it appeared that the lien claimant had knowledge of the rights of the conditional vendor at the time the work on the machine was done.

Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299, involved a contest between the conditional seller of a hack, which had been in the possession of the vendee for about two years, and a mechanic urging the common-law lien of an artisan. A like ruling was made in favor of the conditional seller.

If we go, for further analogy, to the law governing chattel mortgages, we find the rulings to be at least apparently variant. The artisan's common-law lien has been held to be subordinate to the rights of a mortgagee of such a chattel under a registered instrument; and the fact that the mortgagor is permitted to remain in possession, in the absence of a statute providing otherwise, affords no implied authority on his part to subject the chattel to such a lien in priority. A lien attaches, it is held, but only to the mortgagor's interest. Denison v. Shuler, 47 Mich. 598, 11 N.W. 402, 41 Am. Rep. 734, and cases cited; Bissell v. Pearce, 28 N.Y. 252; Hampton v. Seible, 58 Mo.App. 181, overruling, it would seem; Kirtley v. Morris, 43 Mo.App. 144; 7 Cyc. 39.

Other cases uphold the priority of the artisan's lien, over the mortgagee's title, in instances where there may fairly be implied a consent, on the part of the mortgagee, that the mortgagor while in the use of the chattel may have it repaired. Thus in Watts v. Sweeney, 127 Ind. 116, 26 N.E. 680, 22 Am. St. Rep. 615, it was held that a machinist was entitled to prevail on such a lien as against the claim of the mortgagee of a locomotive, the mortgagor being a public or common carrier, and the repairs being made after the condition of the mortgage was broken and the mortgage debt had become due.

In Hammond v. Danielson, 126 Mass. 294, the subject-matter was a hack let for hire which had been mortgaged and described in the mortgage as "now in use" in a certain livery stable. The mortgagor was left in possession agreeably to the terms of the mortgage; that is, the manifest intention of the parties was that the hack should continue to be driven for hire and kept in a proper state of repair for that purpose. For repairs made under contract with the mortgagor the artisan's lien was awarded priority.

In Ruppert v. Zang, 73 N. J. Law, 216, 62 A. 998, in an opinion by Pitney, J., it was held that a common-law lien had priority over a mortgage when claimed for repairs upon a wagon by an artificer, made without the knowledge of the mortgagee.

However, in the cases of Watts v. Sweeney and Ruppert v. Zang, supra, the distinction between the effect of such a common-law lien and a statutory lien of a mechanic was noted--whether properly so is a debatable point. Judge Pitney in the last-named case refers to Sullivan v. Clifton, 55 N. J. Law, 324, 26 A. 964, 20 L. R. A. 719, 39 Am. St. Rep. 652, as a case pointing out the ground of such a distinction. It was said in Sullivan v. Clifton:

"It is one of the characteristics of common-law liens which arise, upon considerations of justice and policy, by operation of law, as distinguished from liens created by contract or statute, that the former, as a general rule, attach to the property itself without any reference to ownership, and override all other rights in the property, while the latter are subordinate to all prior existing rights therein."

See, also, D'Gette v. Sheldon, 27 Neb. 829, 44 N.W. 30; 25 Cyc. 678.

We think it manifest that if the New Jersey court had been dealing with a claim that could only have had basis on a statute, like the one in the pending case, it would have held the same inferior to the mortgage lien.

Coming now to precedents which contrast the rights of statutory lien claimants with those of mortgagees under previously registered chattel mortgages:

In McGhee v. Edwards, 87 Tenn. (3 Pick.) 506, 11 S.W. 316, 3 L. R. A. 654, it was ruled that the statutory lien of a livery stable keeper on a horse must yield to the lien of such a mortgagee, where the lien claim arises under contract with the mortgagor in possession before the maturity of the mortgage. In accord are many cases relating to the statutory lien for pasturage of live stock. National Bank of Commerce v. Jones, 18 Okl. 555, 91 P. 191, 12 L. R. A. (N. S.) 310, and note, 11 Ann. Cas. 1041. The same rule applies to other chattels. 25 Cyc. 678.

Thus, in the recent case of Adler v. Godfrey, 153 Wis. 186, 140 N.W. 1115, it was held that the fact that the mortgagor is permitted to remain in possession of a mortgaged automobile affords him no implied authority to create a lien thereon for storage (a lien by statute in that state) superior to the rights of the mortgagee, and that the rights are not changed by the fact that the mortgagee knew that the mortgagor was keeping the machine in a public garage.

The claim advanced in this case in behalf of Webb as lienor is based...