293 S.W. 46 | Ark. | 1927
Appellant motor company made a conditional sale of a Ford automobile to one Ben Godfrey, retaining the title until paid for, and the purchaser took the car to the shop and garage of appellee for repairs, and, upon his failure to pay the charges therefor, appellee retained possession of the car, claiming a lien thereon for repairs. The purchaser failed to pay for the car, and appellant did not know of its whereabouts until the 20th day of May, 1925, when appellee notified him he had it in his possession, and claimed a lien for repairs and for storage thereon.
After demand made, appellant brought suit in replevin, on the 22d day of May, for the car. Appellee denied that plaintiff was entitled to the possession of the car, that he wrongfully detained same, and that plaintiff was damaged by such wrongful detention, and, by way of cross-complaint, set up a claim for $45.45 for labor and repairs on said automobile and $25 for storage. Appellee retained possession of the car, giving bond for performance of the judgment of the court.
A trial in the justice court resulted in defendant's favor, and, on appeal, the judgment was rendered in appellant's favor for the car or its value, specifying the amount thereof, and against appellant on the cross-complaint for $25 for storage, and from this judgment the appeal is prosecuted.
Appellant contends that there is no testimony to support the verdict on the cross-complaint, and that the court *145 erred in submitting the question of the recovery to the jury. This contention is correct. There is no testimony whatever showing that appellant knew that its car was in the possession of appellee, or in his storage room, until he was notified of that fact by appellee the day before he brought replevin, after appellee had refused to surrender the possession of the car on demand. Appellee also stated that he would not have released the possession of the car upon demand any time before, except upon payment of the amount due for repairs for which he claimed a lien.
In Lowe Auto Co. v. Winkler,
In Webber Implement Auto Co. v. Pearson,
Since this decision was rendered, act approved February 27, 1919, was passed, and 9 thereof has become 6874, C. M. Digest of the Statutes. This act provides for liens of blacksmiths, wheelwrights and automobile repairers, the enforcement of such liens covers the whole subject, and, in so far as it is inconsistent with the provisions of former laws and decisions construing same, repeals them. It still recognizes the superiority of the lien over mortgages, where the property is permitted to remain in possession of and be used by the mortgagor, but expressly provides that the lien upon automobiles for repairs shall be subject to the lien or claim of the vendor of automobiles, trucks, tractors and all other motor-propelled conveyances retaining title thereto for any claim or balance of purchase money due thereon, necessarily repealing statutes and constructions thereof in conflict therewith.
Appellee had no right therefore to retain the possession of the car against the demand of the vendor for possession under the unconditional sale, the purchase money therefor not having been fully paid, and the undisputed testimony shows that the appellant demanded possession of the automobile immediately after he ascertained that appellee had it. There was no testimony warranting the submission of the question of liability for payment for repairs and storage to the jury, and none supporting the verdict rendered therefor on the cross-complaint.
The judgment is reversed accordingly, and the cause dismissed as to the cross-complaint. *147