110 S.E. 603 | N.C. | 1922
CLARK, C.J., dissenting. Civil action, heard on case agreed.
The following are the facts submitted:
"1. Plaintiff is, and was at the time this controversy arose, a citizen and resident of Franklin County, N.C. and defendants were at said time and are citizens and residents of Wake County, N.C. and engaged as a partnership in business as mechanics and artisans in expert automobile repairing under the name of Auto Repair and Welding Company, with their place of business in Raleigh, N.C.
"2. On or about 22 May, 1920, plaintiff sold one J. W. Stewart a Liberty Six automobile, motor No. 7K27580, model 1919, taking from said Stewart a chattel mortgage and note in the sum of $500 as balance purchase money for said automobile.
"3. The chattel mortgage, a copy of which is attached hereto and made part of this agreement, was duly recorded on 22 May, 1920, in Book 323, page 323, in the registry of Franklin County.
"4. Various payments have been made on said note by J. W. Stewart, and the balance now due and unpaid is $117.
"5. On 3 December, 1920, subsequent to the recording of said chattel mortgage and note, J. W. Stewart, without the actual knowledge and without the actual consent of plaintiff, and without notifying plaintiff, drove the said automobile to the shop of defendants in Raleigh, Wake County, N.C. and at the request of said Stewart certain repairs were made on said automobile by defendants, which increased the value thereof, and a just and reasonable charge for the work done and material furnished in making said repairs is $460.55, and bill for said amount was rendered to J. W. Stewart and not paid by him within *28 more than ninety days after the repairs were made, and said bill has never been paid.
"6. That at the time said repairs were made, defendants had no actual knowledge of the existence of the mortgage from J. W. Stewart to plaintiff, and had no actual knowledge of any indebtedness of said Stewart to plaintiff.
"7. That at the time of making said mortgage and at the time of the driving of said automobile to the shop of defendants in Raleigh, J. W. Stewart was a resident of Franklin County, N.C.
"8. The repairs to said automobile were made by the defendants (26) without actual knowledge or actual consent of plaintiff.
"9. At the time said repairs were made, J. W. Stewart was in possession of said automobile as mortgagor under the mortgage held by plaintiff as mortgagee, and said Stewart had been in possession of said automobile at all times since the execution of said mortgage, and was using and driving same with the knowledge and without objection on the part of the mortgagee.
"10. That after the repairs were made, and as soon as plaintiff ascertained that said automobile was in possession of the defendants, he made demand for the possession of same for the purpose of foreclosing his mortgage and thereby collecting the balance due on the note of J. W. Stewart, but defendants refused, and still refuse, to deliver the automobile to plaintiff, claiming the right to hold said automobile and sell it under the provisions of C. S., 2435, and apply the proceeds to the payment of their bill for repairs ahead of plaintiff's claim for balance due on the note of J. W. Stewart secured by mortgage.
"11. Plaintiff claims the right to the possession of said automobile under his mortgage and the right to sell same under the mortgage and apply the proceeds to the satisfaction of balance due on note of J. W. Stewart ahead of payment of the bill of defendants for repairs.
"12. That said automobile is now in possession of defendants, and has at all times been in their possession since it was first left at their shop by J. W. Stewart to be repaired.
"13. That the purpose of the submission of this controversy is to determine whether the plaintiff, by virtue of his mortgage, is entitled to the possession of said automobile and has right to sell same under said mortgage and apply the proceeds of sale first to the satisfaction of balance due on note of J. W. Stewart, or whether the defendants have the right to retain possession of said automobile and sell same under *29 the provisions of C. S., 2435, and apply the proceeds first to the payment of the charge of defendants for repairs."
Submitted by consent of plaintiff and defendants.
Upon the facts judgment was entered for plaintiff, and defendants excepted and appealed.
C. S., 2435, provides as follows: "Any mechanic or artisan who makes, alters, or repairs any article of personal property at the request of the owner or legal possessor of such property has a lien on such property so made, altered, or repaired for his just and reasonable charge for his work done and material furnished, and (27) may hold and retain possession of the same until such just and reasonable charges are paid; and if not paid for within thirty days, if it does not exceed $50, or within ninety days if over $50, after the work was done, such mechanic or artisan may proceed to sell the property so made, altered, or repaired at public auction, by giving two weeks public notice of such sale by advertising in some newspaper in the county in which the work may have been done, or if there is no such newspaper, then by posting up notices of such sale in three of the most public places in the county, town, or city in which the work was done, and the proceeds of the said sale shall be applied first to the discharge of the said lien and the expenses and cost of keeping and selling such property, and the remainder, if any, shall be paid over to the owner thereof." This statute, passed in the valid exercise of the police powers of government, is applicable to any and all contracts by mortgage or otherwise subsequently made and entered into, and affects their interpretation to the extent that its provisions are pertinent.House v. Parker,
On the facts set forth in the case agreed, we are of opinion, and so hold, that defendant's claim for reasonable repairs made at the instance of the legal possessor and under the implied authority of the mortgagee, has the prior lien, and this will be certified that judgment may be entered and enforced pursuant to law.
Reversed.