Wilson v. Malenock

• Decision Date: 13 October 1937
• Docket Number: 269-1937
• Citation: 194 A. 508,128 Pa.Super. 544
• Parties: Wilson v. Malenock, Appellant
• Court: Pennsylvania Superior Court

194 A. 508

128 Pa.Super. 544

Wilson v. Malenock, Appellant

No. 269-1937

Superior Court of Pennsylvania

October 13, 1937

Argued April 26, 1937

Appeal from judgment of County Court, Allegheny Co., 1936, No. 930 in case of George R. Wilson v. M. B. Malenock.

Trespass for conversion. Before Soffel, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Judgment entered for plaintiff. Defendant appealed.

Error assigned, among others, was judgment.

Judgment affirmed.

A. C Christiansen, for appellant.

Ronald D. Negley, of Negley, Negley & Patterson, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Cunningham, J.

The dispute in this case was whether the defendant, an auto-body repairman who rebuilt plaintiff's car, had a common law lien for the cost of the repairs, or, by contract, waived his lien and was therefore liable to plaintiff in an action of trespass for converting the car through refusing to deliver it to him until the repair bill was paid.

The back of plaintiff's 1930 Chevrolet car was damaged on April 14, 1936, as the result of a collision with a car owned by one Brock. Brock promised plaintiff to pay for the repairs to plaintiff's car, and, through his wife, told plaintiff to take the damaged car to defendant's garage; plaintiff did so on April 18th although he had not known defendant previously.

As a result of a conversation with defendant, the details of, and circumstances surrounding which, give rise to the crucial point in this case, plaintiff left his car with defendant who repaired it some two weeks later. Plaintiff made written demand for the return of the car on July 16, 1936; defendant replied by giving written notice of his alleged common law lien for repairs in the amount of $ 46 and of his intention to sell under the Act of May 7, 1925, P. L. 557, 6 PS § 11, if the lien was not paid.

Plaintiff subsequently brought this action of trespass based on the theory of a conversion of his car by defendant. The court below, Soffel J., sitting without a jury, found for plaintiff for the value of the car, as repaired, at the time of defendant's refusal to redeliver, namely $ 106. The basis for the decision of the court below was its finding of fact "that Malenock agreed to repair Wilson's car, the understanding being that the cost of the repairs was to be paid solely by Brock." The trial court concluded that defendant had no common law lien because "there were no contractual relations between the owner of the property and the person claiming the lien out of which the implication of [the] existence of [a] common law lien [might arise]."

It is plain in this state that, in absence of circumstances showing a contrary intention, a person who repairs a chattel at the instance of the owner or his authorized agent, has a common law lien or right to retain possession of the chattel until paid. In M'Intyre v. Carver, 2 W. & S. 392, a carpenter to whom certain doors had been delivered to finish was held to have a common law lien for the labor bestowed upon the goods, Gibson, C. J., stating (p. 395): "It is not to be doubted that the law of particular or specific lien on goods in the hands of a tradesman or artisan for the price of the work done on them, though there is no trace of its recognition in our own books, was brought hither by our ancestors; and that it is a part of our common law." This common law lien is apparently implied by law out of the relations of the parties: Hoover v. Epler, 52 Pa. 522. Thus, in Saxton v. Gemehl, 72 Pa.Super. 177, the bailee of a car for purposes of storage and sale, who also repaired it, was held, in an action of replevin by the owner, to have a lien for storage charges as well as for repairs. The Superior Court reversed the court below and held that defendant had not lost his lien for repairs because he also claimed a lien for storage.

Mathias v. Sellers, 86 Pa. 486, is perhaps the leading case in this jurisdiction dealing with a repairman's common law lien and the waiver thereof. There, plaintiff brought an action of replevin to recover certain tobacco bailed to defendant who had made it up into cigars. The Supreme Court held that defendant was entitled to a lien on the tobacco as made into cigars, for the labor expended thereon and pointed out that there was no special agreement between the bailor and bailee whereby the latter had waived his lien. Woodward J., stated (p. 491): "It has long been a settled rule of the common law, that goods deposited with a tradesman or artisan for manufacture or repair, are subject for the work done on them to a specific lien. Thus, a tailor who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he is paid for his services. . . . . A particular lien is given by the common law to any one who takes property in the way of his trade or occupation, to bestow labor and expense upon it. And it exists equally whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price: 2 Kent's Com. 635. It was said by Holroyd, J., Crawshay v. Homfray, 4 Barn. & Ald. 50, that the principle laid down in Chase v. Wetmore, 5 Maule & Sel. 180, where all the cases came under the consideration of the court, was this, that a special agreement did not of itself destroy the right to retain; but that it did so only where it contained some special term inconsistent with that right. In 2 Selwyn's Nisi Prius 540, the rule is stated to be, that the right of detaining a thing until the money due upon it be paid, may be waived by a special agreement as to the time or mode of payment; but not merely by an argument for the payment of a fixed sum."

It is equally well settled that the parties to the bailment may enter into a contract expressly providing that no lien for repairs shall arise; or if the contract between the parties be inconsistent with a lien, the lien does not exist. As stated in 3 Ruling Case Law, page 122, Section 44: "But all these cases where a lien for services exists are subject to the condition that there is nothing in the contract for doing the work inconsistent with the right of lien."

Turning to the facts of the present case, does the evidence show that defendant's words and acts were so inconsistent with an intention to claim and rely upon a lien that it would be deemed to have been waived? Plaintiff testified concerning the conversation he had with defendant the day he took his car to the garage, as follows: "Q. Now then, just what was your arrangement with Mr. Malenock? A. I took the car down to Malenock's garage, and I told him that I was asked to bring the car there to his garage and that it would be taken care of. He informed me that he knew nothing whatsoever of the situation. So I started to take my car away, and he said, 'Wait, I will call.' So Mr. Malenock called. Q. In your presence? A. No, I was outside the office. I saw him call, but I don't know who he called [on the 'phone], but he came out and informed me to leave the car, that it would be taken care of. Q. Did or did not Mr. Malenock say anything about returning the car to you? A. He told me that the car would be ready in approximately a week. Q. Was your understanding clear that Mr. Brock was to be responsible for the bill? A. Oh, yes. I went to take the car away, when he said he would call up, and then he came out, and said to leave the car, that it would be taken care of. Q. Did you make it clear to Mr. Malenock that you were not going to pay the bill? A. Yes, sir, I told him the circumstances of the case, and I told him that Mrs. Brock told me to bring the car down to his garage. Q. Did Mr. Malenock seem to know who Mr. Brock was? A. Evidently he had heard something of the case."

Further on cross-examination, plaintiff said: "Q. Was anything said about releasing the car? A. Mr. Malenock refused to release the car until it was paid for. Q. Did he say anything about releasing the car without his bill being paid? A. He never mentioned that." On redirect examination plaintiff again testified: "Q. Did you understand at that time that...