Zartman-Thalman Carriage Co. v. Reid & Lowe
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 942,99 Mo.App. 415 |
| Parties | ZARTMAN-THALMAN CARRIAGE COMPANY, Appellant, v. REID & LOWE et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.
REVERSED.
Judgment reversed.
Beardsley Gregory & Kirshner for appellants.
(1) At common law, there was no lien in favor of the livery-stable keeper. Now, by statute in most of the States, such a lien has been given upon the animal cared for, and in three or four of the States, not only upon the animal, but upon buggies, harness, etc., but we are not able to find any other statute like our own. This statute being in derogation of the common law, must be strictly construed. Stone v Kelley, 59 Mo.App. 218; Howe v. Newcomb, 146 Mass. 79; Ingalls v. Vance, 61 Vert. 582; Hershy v. Duval, 47 Ark. 86; 14 S.W. 469; LaLande v. His Creditors, 42 La. Ann. 705, 7 So. 895; Trust Co. v Railroad, 99 Ala. 416, 14 So. 546; Harrington v. Herrick, 64 F. 468; Starns v. Hill, 112 N.C. 1, 16 S.E. 1011; Fishell v. Morris, 57 Conn. 547, 6 L. R. A. 82; Fein v. Wyoming L. & T. Co., 3 Wyo. 331, 22 P. 1150; Workman v. Warder, 28 Mo.App. 6; Cunningham v. Hammill, 84 Mo.App. 393.
Marley & Swearingen for respondents.
(1) The defendants were entitled to retain possession of the buggy under and by virtue of the lien given by section 4228, Revised Statutes 1889. (2) This statute is remedial in its nature, and should receive a liberal construction. Dewitt v. Smith, 63 Mo. 266; Dugan Company v. Gray, 114 Mo. 500; Kelsey v. Lane, 28 Kan. 224. (3) The chattel mortgage relied upon by plaintiff was clearly void as against the defendants. Sec. 3404, R. S. 1899; Bank v. Powers, 134 Mo. 446. (4) The defendants clearly had the right to apply the payments to the credit of J. A. Wright's older account as was indicated by the testimony of Reid. Gautner v. Kemper, 58 Mo. 567; Price v. Merritt, 55 Mo. 646.
--Defendants Reid & Lowe were livery-stable keepers doing business in Kansas City. On May 5, 1900, the defendant John A. Wright brought a horse to said livery stable to be kept and cared for. The price agreed upon for the keep was fifteen dollars per month. The horse remained continuously until the latter part of March, 1901.
The Harrigan-Zartman Carriage Company was a partnership in the year 1900, at Kansas City, engaged in the manufacture and sale of buggies. On August 18, 1900, said J. A. Wright came to the place of business of this manufacturing firm to buy a buggy, as he said, for his father, defendant W. M. Wright. He picked out a surrey, the agreed price of which was $ 275. He paid $ 75 in cash, produced a general power of attorney to act for his father, and under it, and in pursuance of it, executed four promissory notes for $ 50 each, due in one, two, three and four months, and a chattel mortgage on the buggy to secure the notes. His statement to the carriage company at the time was that his horse was at the livery stable; that he wanted the buggy sent there, that it would be there but a few days when he would take it to his place where he was finishing a barn.
Through an oversight on the part of the carriage company, the chattel mortgage was not filed in the office of the recorder of deeds until February 8, 1901.
Wright did not take the surrey away from the livery stable. Some time after the filing of the chattel mortgage, the Zartman-Thalman Carriage Company (successors to the The Harrigan-Zartman Company) learned that the carriage was still at the livery stable. The notes being unpaid, demand was made for the possession of the carriage, which was refused, and thereupon suit in replevin was brought against Reid & Lowe, the livery-stable keepers, W. M. Wright and J. A. Wright. The defendants Wright defaulted. Defendants Reid & Lowe set up a claim of agister's lien against the surrey.
A jury was dispensed with and the cause was tried by the court. It made a special finding of facts and rendered judgment, computing the amount which was due for the feed and care of the horse for the period beginning at the date when the buggy came into possession of the livery-stable keepers, August 19, 1900, down to the time when the buggy was replevined, at which time also the account for the care of the horse ceased, and held that the livery-stable keepers had a lien on the surrey for this amount which the court held was a prior and better lien than that of the chattel mortgage under which plaintiffs claimed.
It is in effect conceded that the rights of the parties to this controversy are to be determined by the construction which shall be placed on the provisions of section 4228, Revised Statutes, which is as follows: "Every person who shall keep, board or train any horse, mule or any animal, shall, for the amount due therefor, have a lien on such animal, and on any vehicle, harness or equipment coming into his possession therewith." This statute is in derogation of the common law and should for that reason be strictly construed. Stone v. Kelley, 59 Mo.App. 214; Howes v. Newcomb, 146 Mass. 76, 15 N.E. 123; Ingalls v. Vance, 61 Vt. 582, 18 A. 452. As to statutes in derogation of the common law, an eminent writer (Sutherland on Statutory Construction, sec. 400) has said: And the same writer has further said, that the difference between a liberal and a strict construction of a statute is that a case may come within one unless the language excludes it while it (the case) is excluded by the other unless the language includes it. Sutherland on Stat. Constr., sec. 348.
Now applying the rule of strict construction to the statute which I have already quoted, can it be doubted that its language includes the case under consideration? The word "therewith"--the last in the section--according to the latest standard dictionaries of the English language (Webster's Int. Dict., Standard Dict.) is the equivalence in meaning of the words "with that or this--at the same time." And taking the definition of the word to be that just given, it is plain that no other interpretation can be placed upon all the words with which it is associated in the statutory collocation than that what is meant by them is that the livery man is given a lien only where the "vehicle, harness or equipment comes into his...
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