27 S.E. 129 | N.C. | 1897
This is a civil action for the possession of a bicycle which the plaintiff bought of the defendant upon the instalment plan. The plaintiff has paid the defendant the price agreed upon, except the sum of $12. This he tendered to the defendant before he commenced this action, and kept the same good to the time of the trial. The wheel was delivered to the plaintiff at the time of the purchase. But the sale was a conditional one, and the property in the wheel was to remain in the defendant until all the purchase money was paid — thus placing the plaintiff in the attitude of a mortgagor and the defendant in the position of a mortgagee.
After the plaintiff had been in possession of the wheel for some time, he broke the same and took it to the defendant for repairs. The defendant had the repairs made, for which he charged $16, and returned the wheel to the plaintiff. After the repairs were made, the plaintiff made a part of the payment, which he claims reduced the amount due to $12. And it is admitted that if all the payments are to be credited on the purchase price, the amount still due would be only $12. There was some question as to whether all these payments had been credited on the purchase price of the wheel or not. But it was agreed by counsel, who argued the case for plaintiff and defendant, that this appeal depended on the defendant's right to retain the wheel (which he had taken from the possession of the plaintiff against his consent and protest) until both debts were paid — the defendant claiming that he (404) had the right to hold the property, not only for the payment of the $12 balance due on the purchase price of the wheel, but also for the $16, the price of the repairs which had not been paid. This being so, we will not discuss the question of tender, nor the application of the money paid by the plaintiff.
The defendant places this contention of his right to retain the wheel until both debts are paid, on two grounds:
First, the right to retain the wheel for repairs, under the common law right of mechanics to retain property repaired until the charges for such repairs are paid.
And, secondly, upon the ground that he occupies the ground of a mortgagee in possession, and is entitled to pay for necessary repairs to the premises while in possession.
The court below sustained these contentions, and from a judgment in favor of the defendant the plaintiff appealed.
The defendant's first contention cannot be sustained, for the reason that if he had ever had a mechanic's lien for repairs, it was discharged *279
when he delivered the wheel back to the plaintiff after the repairs had been made. McDougall v. Crapon,
The defendant's second ground cannot be sustained. If the defendant had necessarily expended money to perfect the plaintiff's title to the wheel, which stood as a security for his debt, he would have been entitled to have this paid back before the plaintiff would be entitled to the wheel. That is, this would have been a superior equity to the plaintiff, and must have been paid. Bank v. Clapp,
But in this case, if the defendant is to be considered as a mortgagee in possession, it was of property that was yielding no rents or profits for which he was to account. There is error.
New trial.
Cited: Glazener v. Lumber Co.,
