Wingate v. Mississippi Securities Co.

• Decision Date: 21 January 1929
• Docket Number: 27442
• Citation: 120 So. 175,152 Miss. 852
• Court: Mississippi Supreme Court
• Parties: WINGATE v. MISSISSIPPI SECURITIES CO. [*]

120 So. 175

152 Miss. 852

WINGATE v. MISSISSIPPI SECURITIES CO. ^[*]

No. 27442

Supreme Court of Mississippi

January 21, 1929

Division B

1 AUTOMOBILES. Mechanic repairing automobile without notice of outstanding reserved title has lien on automobile as against conditional vendor to extent of enhanced value.

Where a mechanic repairs an automobile without notice of a reserved title outstanding, he has a lien upon the automobile as against the conditional vendor, where the repairs were necessary to keep the automobile in condition for operation to the extent of the enhanced value produced by the repairs.

2 AUTOMOBILES. Mechanic, buying car after making necessary repairs without notice of outstanding reserved title, does not lose lien as against conditional vendor.

Where the mechanic, without notice of the outstanding reserved title, after making such repairs, buys the car from the possessor, counting the repairs as a part of the purchase price, he does not lose his right or lien for repairs as against the conditional vendor.

3. SALES. Casings and other separable articles, placed on automobile by possessor, cannot be considered in determining depreciation between giving of forthcoming bond and trial.

Where a writ of replevin is sued out by a conditional vendor for the possession of an automobile, against a person in possession without notice of the vendor's right, and such person in possession gives a forthcoming bond, and the car is depreciated between the giving of such bond and the trial, in assessing damages for depreciation, the casings and other separable articles placed on the car by the possessor should not be counted in determining the amount of depreciation. The plaintiff is only entitled to be made whole on his rights as they exist at the time of the suit.

HON. W. A. ALCORN, JR, Judge.

APPEAL from circuit court of Coahoma county, Second district, HON. W. A. ALCORN, JR., Judge.

Action by the Mississippi Securities Company against R. S. Wingate. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

G. Ed. Williams, for appellant.

The argument for appellee seems to be that although appellant did the work on the car without any knowledge whatsoever of any prior lien on it or claim against it, he is not now entitled to any lien or any pay for his work, because he, appellant bought the car.

We admit that appellant did not get anything by his purchase because of the prior undisclosed lien. But he did get a lien for the repairs made on the car and this lien was not discharged by the sale of the car by the negro because the negro had no title to convey.

Maynard, Fitzgerald, & Venable for appellee.

The only defense set up by appellant is that he was entitled to possession because he had a mechanic's lien for repairs on car and no person owes him for those repairs. Wingate bought the car subject to the title retention contract held by appellee. If he made a bad trade with Marsaiels, we are not responsible for it.

The court below held that appellant had no mechanic and materialman's lien under the facts of the case, and since this was his only defense, appellee was entitled to immediate possession.

G. Ed. Williams, in reply for appellant.

The appellant did work on the car and furnished the necessary parts, not accessories, for which labor and parts the appellant was entitled to a lien, especially in view of the fact that he had no notice of any kind of the lien of the appellee. The repairs were reasonably necessary to preserve the property and permit its ordinary operation and prevent deterioration. This being true, under all the decisions of this court appellant was entitled to a lien for this labor and these necessary parts. This being true under all the decisions of this court appellant was entitled to a lien for this labor and these necessary parts. Moorhead Motor Co. v. Walker Auto Co., 133 Miss. 63; Brown v. Dale, 109 Miss. 52; Hollis & Ray v. Isbell, 124 Miss. 799; Orr v. Jackson Jitney Car Co., 115 Miss. 140.

OPINION

ETHRIDGE, P.J.

On the 21st day of September, 1921, the Automobile Sales Company, of Clarksdale, Miss., sold to a negro named Tom Marsaiels a secondhand Cadillac automobile for the sum of five hundred seventy-four dollars, reserving title to the automobile until it was fully paid for, the payments to be made in installments. Thereafter the Automobile Sales Company sold the contract and notes to the Mississippi Valley Securities Company for five hundred dollars.

In the early part of January, 1926, the appellant, Wingate, was called on by Tom Marsaiels to come to Green Grove, about fifteen miles from Clarksdale, to get the car and repair it; Wingate being engaged in the automobile repairing or service business. Wingate sent for the car, towed it into Clarksdale, it being unable to run by its own power, and there made repairs upon it, involving the following items: Mechanical labor twenty-five dollars, wiring and ignition of batteries, etc., fourteen dollars and fifty cents, timing chain, thirteen dollars and seventy-five cents, and also a battery, thirty-three dollars and fifty cents.

The car also needed casings to make it operate properly, to make it a going concern, and Wingate took up with the landlord of Tom Marsaiels, the purchaser, the question as to whether he would be safe in placing the casings on the car, and was advised against doing so; the landlord being of the opinion that the car was not valuable, and that making these necessary repairs would place too much money in the car. Thereafter Tom Marsaiels came into Clarksdale, and a trade was made between him and Wingate, by which Wingate purchased the car, counting his repairs in the purchase price, and paying a small sum in addition thereto.

Thereafter Wingate placed casings upon the wheels to the value of one hundred five dollars, and operated the car in his business, using it largely for the purpose of towing in cars to be repaired.

At the time of making this purchase, Wingate had no notice of the outstanding contract or conditional sale, but thereafter a demand was made upon him by the Mississippi Valley Securities Company for the possession of the car, which he refused to give up, and proceedings were taken legally to get possession of the car by the Mississippi Valley Securities Company. Wingate gave a forthcoming bond, and defended the action; and thereafter continued to use the car in its then...