De Van Motor Co. v. Bailey

• Decision Date: 14 December 1936
• Docket Number: 32421
• Citation: 171 So. 342,177 Miss. 441
• Court: Mississippi Supreme Court
• Parties: DE VAN MOTOR CO. v. BAILEY

171 So. 342

177 Miss. 441

DE VAN MOTOR CO. v. BAILEY

No. 32421

Supreme Court of Mississippi

December 14, 1936

Division A

Suggestion Of Error Overruled January 11, 1937.

APPEAL from the circuit court of George county HON. W. A. WHITE Judge.

Proceeding by R. G. Bailey to enforce a mechanic's and materialman's lien on a certain motortruck for repairs done and material furnished at the instance of Murray Byrd wherein W. M. Byrd was summoned as a defendant and the De Van Motor Company appeared claiming to be the owner in possession of the truck. From a judgment of the circuit court in favor of the plaintiff on appeal from an adverse judgment of a justice of the peace, the De Van Motor Company appealed. Reversed and remanded.

Reversed and remanded.

J. W. Backstrom, of Leakesville, for appellant.

Where a mechanic does repairs on an automobile with the knowledge, as in this case, of a retention of title contract, his lien is subject to the lien of the seller in the retention of title contract.

Hollis & Ray v. Isbell, 87 So. 273, 124 Miss. 799.

In the case at bar the repairs were done with the knowledge that the appellant held a conditional sales contract upon the truck and certainly the lien of the mechanic was subject to the lien or title of the appellant.

Morehead Motor Co. v. H. D. Walker Auto Co., 97 So. 486, 133 Miss. 63; Miller v. Fisher, 116 Miss. 350, 77 So. 151.

If a mechanic makes repairs on a motor vehicle without notice of the retained title contract his lien will take precedent over the retained title contract to the extent of the enhanced value produced by the repairs, but where a mechanic repairs a motor vehicle with notice or knowledge of a retained title contract outstanding the converse of the rule laid down in the Wingate case will certainly apply.

Wingate v. Miss. Securities Co., 120 So. 175, 152 Miss 852.

This record conclusively shows that at the time the alleged repairs were made the appellant held a lien upon the truck by virtue of a conditional sales contract, and the appellee knew that the appellant had such lien when the material and repairs were furnished. With such knowledge on the part of the appellee his lien is subject to the lien of the appellant. In order for his lien to prime the lien of the appellant the appellant must have expressly of impliedly waived his lien and the testimony is uncontradicted that the appellant had no notice, knowledge or information of any repairs being made until after the institution of this suit. The rule laid down in the case of Hollis & Ray v. Isbell, supra, will control here.

Federal Credit Co. v. Holloman, 147 So. 485, 165, Miss. 211.

All liens are created by law or by contract and there must be a contract in order to establish a mechanic's lien. In the case at bar there was no contract by either the appellant or W. M. Byrd, but the alleged contract of authority for making the repairs were given of made by a stranger to the title. At the time of the repairs Murray Byrd had no title or lawful right to the possession of said truck.

The plaintiff was possibly entitled to a personal judgment against Murray Byrd, but under no theory of the case was he entitled to a personal judgment against the appellant.

McCoy v. Tolar, 90 So. 628, 128 Miss. 202.

The judgment rendered against the appellant in this case was not authorized by law. The appellant was claimant and had executed a forthcoming bond, and there could have been no personal judgment rendered against the appellant, but the only judgment that could have been rendered was a judgment for the return of the property, or if in default thereof for its value, which value should have been ascertained by a jury. There is not one word or line in this record showing any value, either by the officer or in the testimony.

Coleman v. Bowman, 99 So. 465, 135 Miss. 137.

Moss & Moss, of Lucedale, for appellee.

The case of Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, is not in point, because in that case it was not shown that the materials and labor were necessary to preserve the property, permit its operation and prevent its deterioration, as is shown in the present case without contradiction. The same is true in the case of Miller v. Fisher, 116 Miss. 350, 77 So. 151, because in this case there was no implied contract by the owner as in the present case.

In the case of Federal Credit Co. v. Holloman, 165 Miss. 211, 147 So. 485, the court merely held that the claimant could not prevail because there was no contract for the labor and materials furnished, express or implied,

We submit that the recent case of Moorhead Motor Co. v. H. D. Walker Auto Co., 132 Miss. 63, 97 So. 486, citing Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453, and United States Motor Truck Co. v. Southern Securities Co,, 131 Miss. 664, 95 So. 639, is directly in point.

There is only one more question raised by appellant to which it is necessary for us to reply, which is appellant's contention that the judgment in the circuit court should have been rendered against the truck to enforce the lien instead of a personal judgment against appellant and its sureties on its appeal bond. The court will bear in mind that this case was first tried in a justice of the peace court, and was appealed to the circuit court by the claimant, appellant here. Appellant cites the case of McCoy v. Tolar, 128 Miss. 202, 90 So. 628, to support this contention that the personal judgment should not have been taken, but the court will note that in the McCoy case the judgment was rendered on the replevin bond and not on an appeal bond to the circuit court as in the present case. Plaintiff securing a mechanic's lien and judgment for debt may, on appeal, take judgment on appeal bond without establishing lien.

Dudley v. Waitman, 156 Miss. 483, 126 So 1.

OPINION

McGowen, J.

In a justice of the peace court, the appellee, R. G. Bailey, instituted a proceeding to enforce a mechanic and materialman's lien on a certain motortruck, for repairs done, and materials furnished in the repair of said truck, at the instance of Murray Byrd, amounting to fifty-three dollars and forty-six cents. A writ of seizure was executed and levied upon the truck in question, and W. M. Byrd was summoned as a defendant. Upon the seizure of the truck by the officer, the De Van Motor Company claimed it, executed a forthcoming bond, and filed its affidavit claiming to be the owner in possession of the truck as vendor under a conditional sales contract, dated November 15, 1934, with retention of title, executed to it by W. M. Byrd. The sheriff, in his return, did not value the truck.

On the trial before the justice of the peace, a judgment was rendered against Murray Byrd, the De Van Motor Company, and the sureties on the forthcoming bond, for the amount of the debt, in favor of R. G. Bailey. From the judgment of the justice of the peace, the De Van Motor Company appealed to the circuit court, where there was a trial de novo, and at the conclusion of all the evidence, the court peremptorily instructed the jury to find for the plaintiff, Bailey, for the amount of the account, and judgment was entered against Murray Byrd, the De Van Motor Company, and the sureties on the latter's bond, with interest and ten per cent. damages. From that judgment the De Van Motor Company appeals.

The account filed by Bailey was against Murray Byrd for repairs and materials furnished at his instance, which appeared to have been of such a nature as would be necessary for the operation of the truck, and to prevent its deterioration. Bailey testified that, at the time of these repairs, the truck was in the possession of Murray Byrd by virtue of a contract of sale between Murray Byrd and W. M. Byrd, and that the repairs were necessary to preserve the property, permit its operation, and to prevent its deterioration. Bailey knew that the De Van Motor Company had sold the truck to W. M. Byrd under a conditional sales contract, with retention of title, and that the purchase price had not been paid; and that said motor company did not know of the sale thereof by W. M. Byrd to Murray Byrd. Its debt not having been paid by W. M. Byrd, the motor company repossessed the truck subsequent to the date of the repairs, and then resold it to Murray Byrd, retaining title for the purchase money. Murray Byrd having failed to pay, the motor company again repossessed the truck, holding it, as the owner thereof, at the time of its seizure by the sheriff. The motor company had no knowledge of nor did it give its actual consent for the repairs to be made. The conditional sales contracts, executed at different times in favor of the motor company, show clearly that it was intended by both the purchasers and the seller that the truck should be operated while in the hands of the purchasers.

The proceeding to enforce a materialman's lien is authorized by sections 2255-2257, Code 1930. Section 2257 declares a lien on personal property out of possession of the materialman, or its enforcement in the same manner as a purchase-money lien on personal property found in section 2239, and subsequent sections in...