Williamson v. Winningham
| Decision Date | 09 September 1947 |
| Docket Number | 32735. |
| Citation | 186 P.2d 644,199 Okla. 393,1947 OK 231 |
| Parties | WILLIAMSON v. WINNINGHAM. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 18, 1947.
Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.
Action by Pierce Winningham, doing business as the Superior Auto Rebuilders, against W. F. Williamson to recover the amount due under a contract for materials furnished and labor performed in repairing defendant's automobile and to establish and foreclose a lien on the automobile for such amount. Judgment for plaintiff, and defendant appeals.
Affirmed.
The statutory provision that party for whom judgment is rendered in action to enforce any lien may recover reasonable attorney's fee is valid and available for protection of plaintiff's right in suit to foreclose lien for materials furnished and labor performed in repairing automobile. 42 Okl.St.Ann. § 176.
Syllabus by the Court.
1. Where a petition declares upon an express contract but negatives full performance of it because of defendant's wrongful act, a recovery for debt may be had upon a quantum meruit.
2. One who furnishes material and performs labor for the repair of personal property, under oral agreement with a person other than the owner, or his duly authorized agent, acquires no lien against the personal property, but where the owner, with knowledge, has right of option, and approves an artisan's possession together with progress of repair upon such personal property and thereafter wrongfully repossesses the property, he may not profit by his own wrong but is estopped to deny adverse possession of the property whereby a lien, as at common law, exists, reiterated and limited only by statutory provision. 42 O.S.1941 § 91.
3. An artisan or mechanic, with right of possession for labor and materials furnished and used in repair, has a charge or lien upon the property, arising by law, 42 O.S.1941 § 6, for the payment or discharge of a debt as a right qualified by provision of statute and existing after performance, 42 O.S.1941 § 94, subject to enforcement within eight months after performance, § 95, id., and the lien so arising by operation of law and based on possession continues to exist when possession is not valuntarily surrendered, § 25, id., or the lien fails by mere lapse of time, § 25, id. or is defeated by other liens possessed of priority, § 98 id.
4. The filing of a lien statement, 42 O.S.1941 § 98, with the county clerk or the court clerk, 42 O.S.1941 § 132, within 60 days after the last labor shall have been performed or materials shall have been furnished, for the repair of personal property, the possession of which is not voluntarily surrendered, is not necessary to the enforcement of a lien arising by operation of law where, within time provided by statute, an action is commenced upon the principal obligation and for foreclosure, as the filing of such statement merely preserves such a lien as against priority of other liens and against the claim of innocent purchaser for value without notice, actual or constructive, where possession is not had by lienor or is voluntarily surrendered.
Spillers & Spillers, of Tulsa, for plaintiff in error.
A. M Covington, of Tulsa, for defendant in error.
This action was commenced December 29, 1944, by defendant in error, as plaintiff, to recover under an express contract alleged to have been entered into on October 24, 1944, by and between plaintiff and defendant, whereby plaintiff agreed to and did furnish materials and perform labor for the repair of defendant's automobile for an indefinite amount, reasonable consideration to be shown by itemized statement to be, and which was, furnished defendant by being attached to plaintiff's petition.
Plaintiff alleged that he performed the labor and furnished the materials for the repair except the last item contained in the statement, an alignment of the front system of the automobile, $6.50, which was waived; that the alignment was being made under subcontract when defendant wrongfully repossessed himself of the automobile and refused to return it for completion of repairs. Plaintiff alleged that within 60 days thereafter he had filed a verified statement of the claim arising under the contract, in the office of the County Clerk of Tulsa County, Oklahoma; that he was entitled to a lien on said property in the amount of $136.85, from and after November 1, 1944, the date plaintiff would have completed the repair.
Plaintiff prayed judgment with interest, costs, and a reasonable attorney's fee; that the judgment be decreed a lien upon the automobile, and foreclosed.
Defendant, by verified answer, denied his authorization for execution of the contract; denied his authorization for plaintiff's performance of work or labor; and denied correctness of the account and the existence of the debt.
A jury was waived; the cause proceeded to trial by the court. At the conclusion of plaintiff's evidence, defendant's demurrer was overruled; defendant elected to stand on his demurrer, declined to adduce evidence; and the court rendered judgment for plaintiff.
The judgment was based on a finding that plaintiff had rendered service to defendant's automobile by furnishing material and performing labor; that the charges were fair, reasonable, and unpaid; that defendant had approved plaintiff's service upon the car, but defendant had wrongfully reclaimed his automobile. A judgment for plaintiff against defendant was rendered in the amount sought, with interest; a lien was declared upon the automobile and ordered foreclosed; plaintiff was allowed an attorney's fee of $50.
The trial court erroneously found that plaintiff duly and properly filed his lien claim.
There is no evidence of record that plaintiff ever filed a lien claim. Defendant in error, in his brief says: '* * * the case-made does not reveal a formal tender of proof of this fact * * *'.
The trial court erred in declaring the judgment a lien unless plaintiff's right to a lien may be classified as a common law lien, recognized by statute. 33 Am.Jur. 420 § 4.
The evidence shows plaintiff commenced the work October 24, 1944. The action was instituted December 29, 1944, and there is an entire absence of proof, either by exhibit or evidence, to show that plaintiff performed any work or furnished any material after October 24, 1944. Sixty days after October 24, 1944 was December 23, 1944, at which time plaintiff's action was not yet commenced.
If the lien decreed is sustained, it entails an estoppel in pais because in fact plaintiff lost possession of defendant's automobile. Plaintiff plead that because of defendant's wrongful act in repossessing himself of his automobile, plaintiff was prevented from the performance of the repair. The pleading was sufficient as an averment of estoppel although the word 'estoppel' was not employed.
Facts established by plaintiff's evidence are that while defendant was absent from the City of Tulsa and defendant's automobile, in possession of defendant's father, was parked on the City's street, it was wrecked by action of a third person. Plaintiff was given permission by defendant's father to repair defendant's automobile, under promise of defendant's father that defendant would pay for the repairs. Plaintiff made necessary repairs on defendant's automobile except as to the one item of alignment, whereupon defendant returned to the city, went to plaintiff's shop and expressed himself satisfied with progress of the work. The repairs at that time were completed except as to the front alignment of defendant's automobile, the defendant acquiesced in plaintiff's plan and arrangement, by subcontract, to complete the repairs. Defendant told plaintiff he was willing to sign a release of liability of damages as against the third party so that the cost of repairs might be paid by the third party's insurance carrier. Defendant thereafter changed his mind, declined to sign the release of liability and based his attempted revocation of ratification upon an alleged needful extension of repair. Theretofore, pursuant to plan approved, plaintiff had delivered defendant's automobile to the subcontractor for completion of the repairs.
After actual possession of defendant's automobile was by plaintiff delivered to the subcontractor, defendant wrongfully and without authority of plaintiff or the subcontractor repossessed himself of it.
A demurrer to the evidence admits every fact which the evidence in the slightest degree tends to prove, and all inferences and conclusions which can be reasonably and logically drawn therefrom. The fact that the action is one of legal cognizance insofar as establishment of debt is concerned and was tried to the court in the absence of a jury does not defeat the rule when the evidence is neither conflicting, inherently improbable, nor the testimony sought to be impeached. Benke v. Stepp, Okl.Sup., 184 P.2d 615.
The issue presented is whether plaintiff made a prima facie case entitling him to a judgment against defendant for debt and whether the debt constituted an obligation amounting to a lien such as might be foreclosed and an attorney's fee allowed.
In an action where the petition declares alone upon an express contract and full performance thereof is pleaded, no recovery can be had upon a quantum meruit. Dunn et al. v. T. J. Cannon Co., 51 Okl. 382, 151 P. 1167.
While the petition in the case at bar declared upon an express contract, full performance of it was not pleaded but negatived. While ratification of the contract was not specifically plead, without precise objection by the adverse party, it was sought to be proved.
Estoppel as plead was proved; plaintiff established the charges constituting debt,...
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