Yellow Mfg. Acceptance Corp. v. Bristol

• Decision Date: 24 October 1951
• Citation: 236 P.2d 939,193 Or. 24
• Parties: YELLOW MFG. ACCEPTANCE CORP. v. BRISTOL.
• Court: Oregon Supreme Court

Page 939

236 P.2d 939

193 Or. 24

YELLOW MFG. ACCEPTANCE CORP. v. BRISTOL.

Supreme Court of Oregon.

Argued Oct. 8, 1951.

Decided Oct. 24, 1951.

Dudley C. Walton, Roseburg, argued the cause for appellant. On the brief were Davis, Walton & Richmond, of Roseburg.

No appearance for respondent.

Before BRAND, C. J., and HAY, LUSK, LATOURETTE and TOOZE, JJ.

TOOZE, Justice.

Yellow Manufacturing Acceptance Corporation, a Delaware corporation, duly authorized to transact business in the state of Oregon, as plaintiff, brought action in replevin against Chester Bristol, as defendant, to recover possession of a certain motor truck and trailer. The defendant answered and, after denying the material allegations of the complaint, pleaded affirmatively as a first defense his right to possession of the property by virtue of a possessory lien for work, labor, and materials furnished on said truck at the special instance and request of the owner thereof, one Donald Owens, and as a second defense, his right to possession by virtue of a lien notice filed against said truck and trailer in the lien records of Douglas county, Oregon, covering such work, labor, and materials furnished on said truck in the repair thereof at the special instance and request of the owner. The amount claimed due was $387. Then, by what is labeled a 'First Cross Complaint' in equity, defendant pleaded his alleged lien and prayed for the foreclosure thereof. The matter was tried to the court as a suit in equity. The court found that defendant had a possessory lien, but refused to foreclose the same for the reason that Donald Owens, the owner, had not been made a party to the litigation; the court entered a decree dismissing the suit. Plaintiff appeals.

The jurisdiction of the trial court to hear the matter as a suit in equity was not challenged by either party, neither there nor here. Inasmuch as we propose to dispose of this case upon the merits, we deem it unnecessary to discuss in detail the jurisdictional question. However, we do not wish to be understood as approving the procedure in this case. It is noted that, defendant's first affirmative defense, if true, is a complete defense to plaintiff's cause of action; and his second affirmative defense, if true, might, under the circumstances hereafter discussed, also be a complete defense. Obviously, the purported cross-complaint does not present a situation 'where defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material to his defense,' which is necessary to equitable jurisdiction. (Italics ours.) Jacobson v. Wheeler, Or., 230 P.2d 550; Hamilton v. Hamilton Mammoth Mines, Inc., 110 Or. 546, 223 P. 926; Haaland v. Miller, 67 Or. 346, 136 P. 9; § 9-102, O.C.L.A.

On or about May 6, 1949, one Donald Owens purchased from Ray Buckley Motors at Roseburg, Oregon, one GMC 1940 motor truck and one Wentworth & Irwin 1940 trailer for the sum of $4,209.86. On May 10, 1949, Owens executed and delieverd to Ray Buckley Motors his certain chattel mortgage covering this truck and trailer, as security for payment of the purchase price thereof. This chattel mortgage contained the usual provisions for repossession of the truck and trailer by the mortgagee in the event of default on the part of the mortgagor. Ray Buckley Motors immediately assigned this chattel mortgage to plaintiff. The mortgage was duly filed in the official records of Douglas county on May 10, 1949, pursuant to law.

Between May 10, 1949, and May 22, 1949, defendant Bristol, doing business under the assumed name of B & C Welding, at the special instance and request of Donald Owens, performed labor upon and furnished necessary materials for the repair of said truck. The total reasonable value of such labor and materials was $687, of which sum Donald Owens paid $300, leaving a balance due defendant of $387.

Owens was engaged in hauling logs, using this truck and trailer for the purpose. When defendant completed the repairs, and on or about May 22, 1949, he permitted Owens to take the truck and trailer for the purpose of carrying on his work of hauling; thereafter, Owens made continual use thereof in his work.

Explaining the circumstances connected with Owens' use of the truck and trailer when the repairs had been completed, defendant testified:

'Q. Now, after the work was performed, did you have any agreement with Mr. Owens in regard to letting him have the truck? A. Yes, I told him that I couldn't let him have the truck and then he said, 'Well, if he could take it out and do some work with it, why, I would be able to pay you.' And so we talked it over and I said I guessed that would be all right but he would have to bring the truck back there and keep it there so I would know just what the score was on it and I wouldn't have any trouble in trying to get it back and that was the agreement that we had together.

'Q. Now, after you let him have the truck, did he go to work with it? A. Yes, he did.

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* * *

'Q. Did you tell him that he could have it only--what was the actual agreement between you and Owens? A. Well, it was just if he didn't make up his payments, why I was to get the truck--that is, to take possession of the truck and if he didn't work with it, why the truck was to be left there; that is all; so that I would be sure and have my money protected.' (Italics ours.)

Defendant further testified on direct examination:

'Q. Now, you say this work started about the 6th of May. How long did you work on the truck at that time? A. Well, off and on some 15 or 20 hours.

'Q. Well, when did that particular job get done--when was it completed? A. Around the 22d of 23rd.

'Q. Of May? A. Yes.

'Q. What did you do with the truck then? A. That is when Donald Owens and I made the agreement and he took the truck out to go to work with it.

'Q. Then from time to time as it was brought back and there was this other work done on it, was it? A. Yes, sir.'

Upon cross-examination defendant testified:

'Q. Now, it is a fact, isn't it that between the times that you were doing the work on this truck after the 20th of May, Donald Owens was using the truck to work with? A. Yes, sir.

'Q. He would bring it back to your place for other work to be done, is that right? A. Yes, he did.

'Q. And you also stated, I believe, that it was about the 10th of July that you made and entered into this agreement, whatever it was, with Donald Owens about his bringing the truck in in the event he didn't pay you, is that right? A. No, that isn't right. It was about the 20th of May that that agreement was made.

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'Q. Isn't it a fact, Mr. Bristol, that you filed or executed a non-possessory lien notice or non-possessory lien on chattel on the 6th day of July, 1949? A. Yes, I went to Mr. Kabler and had him put a lien on the truck.

'Q. And at that time, what was the day that you gave possession back to Mr. Owens, wasn't it? A. No, I never gave him possession especially that day, no.

'Q. That day was the day that you completed some work on the truck, wasn't it? A. No, I don't know as I worked on the truck that day at all.

'Q. That truck hadn't been in your shop that day? A. Yes, it was there.

'Q. When did Mr. Owens take it out after that? A. Three or four days later.

'Q. After you had prepared and executed this notice of lien? A. Yes, I believe it was.

'Q. At that time you were relying on your notice of lien you were going to file, isn't that right? A. Well, yes, I had relied on that. I don't know too much about the law and that is that I thought should be done.

'Q. You weren't attempting to hold possession of this truck of force Mr. Owens to pay the claim? A. Not at that time, no.

'Q. You were going to rely on Mr. Owens to pay you the bill? A. Yes, sir, to keep up with our agreement, yes.

'Q. You were going to rely on his honor to pay you the bill rather than holding possession of the truck? A. Yes, sir, you might say that was it or his agreement to do that, yes.

'Q. In other words, his agreement to pay you? A. Yes.' (Italics ours.)

The lien notice mentioned by defendant is that alleged in his second affirmative defense, and it was filed in Douglas county on July 16, 1949.

Upon conclusion of the trial the court entered of record its findings of fact, conclusions of law, and decree as follows (omitting formal parts):

'Findings of Fact and Conclusions of Law

'I.

'That the plaintiff is a corporation organized and existing by virtue of the laws of the State of Delaware and is licensed to do business in the State of Oregon.

'II.

'That Donald W. Owens is the owner of one GMC truck, Model Number ACR 753 Log, Motor Number 451372, Chassis Number 003, and one Wentworth & Irwin 1940 Trailer, Model Number Log, Chassis Number S13017.

'III.

'That on the 10th day of May, 1949, said Donald W. Owens gave a chattel mortgage on said truck and trailer to Ray Buckley Motors for the sum of $4,209.86.

'IV.

'That said Ray Buckley Motors assigned said mortgage to the plaintiff and guaranteed the payment thereof, and that the plaintiff is now the owner and holder of said mortgage.

'V.

'That immediately after the purchase of said truck and trailer and the giving of said mortgage, said Donald W. Owens delivered the same to the defendant for repair and that the defendant repaired said truck and trailer and furnished materials in performing said work, and that there is now due, owing and unpaid on account of said work, labor and materials the sum of $387.00.

'VI.

'That the defendant retained possession of said truck and trailer as security for the payment of said sum of $387.00 and now holds possession thereof and has a possessory lien thereon for said sum.

'VII.

'That the defendant permitted said Owens to have temporary custody of said truck and trailer for the purpose of hauling logs but did not surrender his lien thereon.

'And, as conclusions of law from the foregoing facts, the Court finds that

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