135 A. 92 | N.J. | 1926
This was an action in replevin, brought to recover the possession of an automobile owned by the plaintiff, and which, it alleges in its complaint, was wrongfully detained by the defendant, a garage keeper, in violation of the plaintiff's right. The defendant answered the complaint, averring that, by the provision of our Garage Keepers' Lien act (Pamph. L. 1915,p. 556), he was entitled to retain possession of the car until certain storage charges thereon were paid, and also counter-claimed for those charges and for expenses incurred by him in hauling the car to his garage.
The undisputed facts are as follows: The plaintiff, a corporation of the State of Pennsylvania, leased this car to Benjamin Cohen and Pearl Holmes. The lease was in writing, and was executed in Philadelphia. During the running thereof, and in the latter part of October, 1921, while Cohen was driving the car, it collided with a truck traveling on the highway and was considerably damaged. The lessees of the car, Cohen and Holmes, then employed the defendant, Stewart, to haul the car to his garage and repair shop. This was done, and the car was left there by the lessees until March, 1922, at which time they defaulted in the payment of the rent due on the car, and by the terms of the lease their rights as lessees then came to an end. The plaintiff, after the default, demanded possession of the car from the defendant, Stewart, but the latter refused to release it, claiming that he had a garage keepers' lien upon it. The present suit was brought, as has been stated, for possession of the automobile, and also for damages occurring by reason of its detention. The case came on to be heard in due course, and a verdict was directed in favor of the plaintiff, so far as the right of possession of the car was concerned, the question of damages to the plaintiff for its detention being left to the determination of the jury. At the same time the court dismissed the counter-claim of the defendant. From the judgment entered on the verdict of the jury and on the dismissal of his counter-claim, the defendant has appealed. *3
The present case is controlled by the decision of this court inStern v. Ward,
The defendant further argues that, even if he did not have a lien for storage under the statute, as construed in Stern v.Ward, supra, still, he was entitled to a lien for hauling the car to his garage. We consider this claim without merit. The statute does not give to a garage keeper a *4 lien upon a car for the expense incurred by him in hauling it to his garage, unless that be considered a mere incident to the storing of it; and not then, as we have already stated, unless the work of hauling is done at the request or with the consent of the owner or his representative.
The defendant also argues that the court was in error in overruling his counter-claim. His contention is that he is entitled to recover from the plaintiff compensation for hauling the car to the garage and for its storage afterwards, even though he has no lien upon it for those expenses. If this matter was properly before us for determination, we should consider that the plaintiff was not liable for an indebtedness incurred by its lessees during the continuance of the lease, as it was not incurred with its consent, either express or implied. The ground, however, upon which we conclude that the action of the trial court, in dealing with the defendant's counter-claim, was proper, is that a counter-claim cannot properly be set up in an action of replevin. The sole matters for determination in such an action are the right of possession of the chattel which is involved in the suit; and, if such right of possession is found to be in the plaintiff, the pecuniary loss, if any, sustained by him by reason of the wrongful detention of the chattel by the defendant.McDade v. Reilly,
The judgment under review will be affirmed.