Sundin v. Swanson

• Decision Date: 19 April 1929
• Docket Number: 26,888
• Citation: 225 N.W. 15,177 Minn. 217
• Parties: THEODORE SUNDIN AND ANOTHER v. J. E. SWANSON AND OTHERS
• Court: Minnesota Supreme Court

225 N.W. 15

177 Minn. 217

THEODORE SUNDIN AND ANOTHER v. J. E. SWANSON AND OTHERS

No. 26,888

Supreme Court of Minnesota

April 19, 1929

Defendant The Boyd Shops appealed from an order of the district court for Hennepin county, Baldwin, J. sustaining a demurrer to the answer. Reversed.

SYLLABUS

When lien of automobile mechanic takes priority over the conditional vendor's right.

One who furnishes labor and material in the repair of an auto at the instance of the conditional vendee in possession has a lien under G.S. 1923 (2 Mason, 1927) § 8507, prior to the right of the conditional vendor; but his lien is lost by a surrender of possession. He has a lien under L. 1925, c. 352 embodied in 2 Mason Minn. St. §§ 8524-8528, but no priority over the conditional vendor, for the statute gives none.

Livery Stable and Garage Keepers, 38 C.J. § 30 p. 82 n. 63.

See note in L.R.A. 1915D, 1142; 20 A.L.R. 249; 30 A.L.R. 1227; 24 R.C.L. 459; 3 R.C.L. Supp. 1371; 5 R.C.L. Supp. 1287.

Jamison, Stinchfield & Mackall, for appellant.

F. Gordon Wright and Lyle Z. Wright, for respondents.

OPINION

DIBELL, J.

Action to foreclose a lien upon an auto for work and materials furnished in the repair of it. The plaintiffs demurred to the answer of the defendants for insufficiency of facts. The demurrer was sustained, and the defendant The Boyd Shops appeals.

The work was done and the materials were furnished at the instance of the conditional vendee in possession. The plaintiffs claim a lien superior to the right of the conditional vendor.

The statute, G.S. 1923 (2 Mason, 1927) §§ 8507-8508, relative to a lien for labor and material employed or furnished or used upon personalty in possession is:

§ 8507. "Whoever at the request of the owner or legal possessor of any personal property shall store or care for or contribute in any of the modes mentioned in the next section to its preservation, care, or to the enhancement of its value, shall have a lien upon such property for the price or value of such storage, care or contribution, and for any legal charges against the same paid by such person to any other person, and the right to retain the property in his possession until such lien is lawfully discharged; but a voluntary surrender of possession shall extinguish the lien herein given."

§ 8508. "Such lien and right of detainer shall exist for: * * *

"4. Making, altering or repairing any article, or expending any labor, skill or material thereon."

The statute having specific reference to liens on motor vehicles as amended by L. 1925, p. 446, c. 352, as it appears in 2 Mason Minn. St. is:

§ 8524. "Whoever performs or contributes any labor or skill, or furnishes or contributes any machinery, materials, storage, in making, altering, repairing, storing, or otherwise caring for any motor vehicle whether pursuant to a contract which the owner of such motor vehicle or at the instance or request of any agent of such owner, shall have a lien upon such motor vehicle for the price, or value, of the labor or skill performed, or machinery, supplies, materials, storage, is furnished pursuant to a contract for an agreed price, the lien shall be for the sum so agreed upon; otherwise, it shall be for the reasonable value thereof."

§ 8528. "* * * The term 'owner' shall include the conditional vendee or mortgagor in possession."

Subsequent sections provide for a foreclosure by action wherein the lien claimant obtains possession, the auto is sold as personal property on execution, the lien claim is paid, and the remainder of the proceeds is paid to the owner or other person entitled thereto.

In the 1913 compilation §§ 8507-8508 are §§ 7036-7037; and §§ 8524-8528 are §§ 7053-7057 as amended by L. 1911, p. 447, c. 320, and the 1925 act. This is noted because some of the cases cite the 1913 compilation.

The facts to which the statutory law is to be applied are these: In March, 1927, the defendant Boyd Shops sold the auto sought to be charged with a lien by conditional sales contract recorded March 15, 1927, to the defendant Swanson. The Boyd Shops then assigned its right or title to the Commercial Investment Trust, a financing concern, and guaranteed payment by Swanson. In making the assignment it was agreed that if default should be made by the conditional vendee and the Trust should repossess itself of the auto, it would resell to The Boyd Shops, the consideration being the payment by The Boyd Shops to the Trust of the amount remaining unpaid on Swanson's contract.

Swanson took possession when he purchased. Between August 20, 1927, and September 3, 1927, the plaintiffs, at his request, performed work and furnished materials of the value of $18.45 for which they claim a lien prior to the right of the conditional vendor. On September 15, 1927, default was made by Swanson in his payments to the Trust, and on October 7, 1927, the Trust repossessed itself of the auto under the provisions of the conditional sales contract. On October 20, 1927, plaintiffs filed their claim of lien. On October 24, 1927, The Boyd Shops paid the Trust $394.98, pursuant to the agreement for a resale, and the Trust then transferred its title to The Boyd Shops. The plaintiffs filed their claim of lien as required by the motor vehicle statute.

Upon these facts the question argued is whether the lien of one who furnishes labor and materials in the repair of an auto at the request of the conditional vendee in possession, and surrenders possession, takes precedence of the recorded title of the conditional vendor.

The plaintiffs have no lien under §§ 8507-8508, for they surrendered possession. If they had retained possession they would have a lien prior to the title of The Boyd Shops under Stebbins v. Balfour, 157 Minn. 135, 195 N.W. 773, where we held that the statute intended priority and that it was not superseded or rendered inapplicable as to work done on automobiles by §§ 8524-8528. And see Monthly Instalment Loan Co. v. Skellet Co. 124 Minn. 144, 144 N.W. 750 (priority of lien of warehouseman); Smith v. Stevens, 36 Minn. 303, 31 N.W. 55 (priority of lien of a liveryman). If the plaintiffs have a lien superior to the title of The Boyd Shops it must be because of §§ 8524-8528. Whether the statute gives priority was queried but not decided in Reed v. Horton, 135 Minn. 17, 159 N.W. 1080.

There are cases holding with considerable strictness that a statutory lien does not take precedence of a prior contractual lien unless an intention to that effect is declared or clearly shown. Atlas Securities Co. v. Grove, 79 Ind.App. 144, 137 N.E. 570; Madison R.L. Assn. v. Wells, 79 Ind.App. 266, 137 N.E. 769; Shaw v. Webb, 131 Tenn. 173, 174 S.W. 273, L.R.A. 1915D, 1141, Ann. Cas. 1916A, 626; Eccles v. Will, 23 N.M. 623, 170 P. 748, L.R.A. 1918C, 1022; Cache Auto Co. v. Central Garage, 63 Utah 10, 221 P. 862, 30 A.L.R. 1217; Metropolitan Securities Co. v. Orlow, 107 Ohio St. 583, 140 N.E. 306, 32 A.L.R. 992.

In other cases it is held that where the statute gives a lien with the right to retain possession until payment is made priority is intended. Jesse A. Smith Auto Co. v. Kaestner, 164 Wis. 205, 159 N.W. 738; Mortgage Securities Co. v. Pfaffmann, 177 Cal. 109, 169 P. 1033, L.R.A. 1918D, 118; Johnson v. Yates, 183 N.C. 24, 110 S.E. 603; Barrett v. Commercial Credit Co. 54 App. D.C. 249, 296 F. 996; Bardasch v. Kalisch, 118 Misc. 119, 193 N.Y.S. 719.

Referring to a statute similar to § 8507, the Wisconsin court in the case cited said :

"The clause 'and may retain possession of such property until such charges are paid' contains no...