Hollis & Ray v. Isbell

87 So. 273 | Miss. | 1921

Ethbidge, J.,

delivered the opinion of the court.

Hollis & Ray instituted a proceeding to establish a mechanic’s lien on an automobile which they had repaired for Isbell. Isbell had bought the automobile from Wm. Atkinson & McDonald Company, a corporation, who had retained title until the purchase money was paid. The suit originated in a justice of the peace court in which court there was a judgment holding the appellant’s claim superior to that of Atkinson & MoDlonald Company, from which judgment an appeal was prosecuted to the circuit court, where there was a judgment holding that the lien of Atkinson & McDonald Company was superior to that of the appellant, from which judgment this appeal is prosecuted.

The case Avas tried in the circuit court on an agreed statement of facts before the circuit court without a jury. The agreed statement of facts reads as íoHoavs :

“In this case it is agreed betAveen counsel to submit to the court, waiving a jury, the following facts:

“It is agreed that Atkinson & McDonald Company on March 22, 1919, sold and delivered to J. M. Isbell a Maxwell touring car for the sum of tAvo hundred seventy-five dollars and interest, for which amount they accepted his note, reserving to the said company title to the said car until the purchase money should he paid; that said note is filed herewith as Exhibit A hereto. On the-day of September, 1919, there was due on the said note a balance of two hundred fifteen dollars which fact that there was a balance due by Isbell on the car to claimant was fully known to Hollis & Ray, plaintiffs in the original suit.

“On the last date named, without the knowledge or consent of Wm. Atkinson & McDonald Company, the saidIsbell took the automobile to Hollis & Ray for repairs and they repaired it at.their garage. The amount due for said repairs amounted to fifty-one dollars. Before the said bill was paid they, Hollis & Ray, consented for the said Isbell to take possession of said car.

“On the —■- day of--, 1920, the said bill for repairs being still due and unpaid, said Hollis &' Ray filed their suit in the justice of the peace court to enforce their lien on said car for the said sum. The car was seized. Atkinson & McDonald Company before the trial filed their claimant’s issue, claiming the title to said car by virtue of said note.

“At the trial Hollis & Ray obtained judgment for said amount of fifty-one dollars and for the sale of said car for which to pay the said amount. 'On trial of claimant’s issue the said lien of Hollis & Ray was held to be paramount to the claim of title of Atkinson & McDonald Company. Whereupon said company appealed to the circuit court.”

The appellant relies upon the case of Broom v. Dale, 109 Miss. 52, 67 So. 659, L. R. A. 1915D, 1146, in which this court held that where a vendor reserving title to secure the purchase money had knowledge that a car sold with title retained was being repaired by a mechanic, and made no objection thereto, the mechanic’s lien was superior to that of the vendor. The appellant also relied on the case of Orr v. Jitney Co., 115 Miss. 140, 75 So. 945. In the Broom Case, supra, a ground of liability rests upon tbe proposition that the vendor had knowledge and impliedly consented to the repair of the car, and that the repair resulted to his benefit as well as to the benefit of the vendee. In the case before us the vendor had no knowledge whatever that repairs were being made or were to be made until after their completion. There is nothing in the record to show that the repairs increased the value of the car over and above its value at the time of the sale.

The appellant also argues that the principle of commercial necessity enters into this case, and for that reason a mechanic’s lien should be superior to the vendor’s lien or the vendor’s title, even though the mechanic had knowledge of the seller’s rights.

In 3 R. C. L. 133, section 55, it is stated:

“All liens are created by law or by contract of the parties. Hence, while ordinarily a bailee has a lien on a chattel where by the bestowal of skill and labor he has enhanced its value, such a lien arises from his employment to render the services, and, as a lien is in effect a proprietary interest or qualified ownership, it follows that the employment must be by the owner whose property is to be affected by.the lien, or by his conseht, express or implied; otherwise the bailee has no lien, and the true owner on demand is entitled to a delivery thereof without satisfying any charges which may hace accrued in favor of the bailee against his bailor.”

The general rule of priority is that one acquiring a right with knowledge of a prior right acquires subject to the prior right, and this rule will be enforced unless circumstances are such that an agreement to the contrary may be implied on the part of the holder o.f the prior right. In many cases the circumstances warrant the court in holding from the circumstances that the prior lienholder has waived his lien or agreed to subordinate it to that of the subsequent lienholder, and that was the foundation upon which the case of Broom v. Dale rested. In the present case it was agreed in the agreed statement of facts above set out that the seller had no knowledge of the transaction between the mechanic and his vendee, but shows, on the contrary, • that the mechanic had full knowledge of the seller’s right. This being true, he must have contracted upon the faith of the credit of the vendee and such right as the vendee had in the property repaired. There are no circumstances in this record sufficient to wrarrant us in applying the doctrine of Broom v. Dale, supra, to this case. There is a clear distinction between this case and that' one.

The learned court below decided in accordance with this opinion, and the judgment is affirmed.

Affirmed.