Baughman Automobile Co. v. Emanuel, 137 Ga. 354

Baughman Automobile Co. v. Emanuel

137 Ga. 354 | Ga. | 1912

Hill, J.

(After stating the foregoing facts.)

The general demurrer filed to the equitable petition was properly sustained by the court. The plaintiff’s remedy was not by equitable petition, but by paying the balance of the purchase-price due by Harrell to Emanuel, in whom the title to the automobile was, and then proceeding to subject the property to the mechanic’s lien as the property of Harrell, the vendee, at whose instance the improvements were made. It is insisted, however, that this rule would work a hardship where the mechanic is not financially -able to pay the balance of the purchase-money due on the machine in order to subject it to the mechanic’s lien for labor and material furnished in repairing and improving it. But the *357reply is, that, in the present ease at least, the plaintiff knew at the time the labor was performed and the material furnished, as appears by the petition, that the title to the property improved was in another person than the one for whom the work was being done and the material furnished, and that that person was insolvent. The plaintiff, therefore, furnished the labor and material to repair the property with full knowledge of the insolvency of the vendee for whom the work was being done, and that the title to the property was in the vendor, J. H. Emanuel. It would be a hardship, also, to one who had parted with personal property by conditional contract of sale, and who had taken the necessary legal steps to protect the title by taking a written contract reserving title in himself and put the world on notice of that fact by having the contract duly recorded, to have the property subjected to the debts of other' creditors, who have not thus secured themselves. It is also contended by the plaintiff in error that the vendor, Emanuel, knew of the improvements being made on the machine and accepted them, and therefore that this created a liability which should subject the vendor’s property to the mechanic’s lien. The petition which alleged the above facts also shows that as soon as the vendor of the • automobile had notice that an effort was being made to subject it to the foreclosure of the mechanic’s lien, he filed his action in bailtrover to recover the property. There are authorities to the effect that where services are of such a nature that one has no choice but to accept them, it can not be said that the party accepted them voluntarily, and such acceptance would create no liability. Keener on Quasi-Contracts, 360; 2 Page on Contracts, §, 776, and cases cited; Woodruff v. McDonald Furniture Co., 96 Ga. 86 (23 S. E. 195); Englehart-Hitchcock Co. v. Central Investment Co., 136 Ga. 564 (71 S. E. 787); Civil Code (1910), § 6038.

Judgment affirmed.

All the Justices concur.