203 S.W. 1137 | Tex. App. | 1918
This suit was brought by plaintiff in error, T. C. McBride, against defendants in error J. L. Beakley and F. C. Beakley, to recover a sum of money alleged to be due for labor and material used in connection therewith in repairing an automobile, owned by J. L. Beakley, and to foreclose a lien on the automobile repaired. Judgment was rendered for the amount claimed by plaintiff, but foreclosure of the lien on the automobile was denied on the ground that the lien was waived by the voluntary delivery of the automobile after the completion of the work thereon under circumstances hereinafter stated, and this action of the court below is the basis of the complaint of its judgment.
The said T. C. McBride, at the request of J. L. Beakley, did certain work on an automobile belonging to him; the value of the labor and material put in on the said job being the sum of $115.38. McBride's son, during the father's absence, allowed F. C. Beakley, son of J. L. Beakley, to take possession of said automobile, requiring the said F. C. Beakley upon such delivery to execute his note to T. C. McBride for the sum of $115. The judgment was against J. L. Beakley for the amount of the account, $115.38, with interest, and against F. C. Beakley on the note, with provision that payment on either judgment would discharge to that extent the judgment against the other. It was claimed on the trial that McBride's son had no authority from him to deliver the car without payment of the account; the father having left instructions with the son, who was in charge of his shop during his absence, to hold the car until the charges were paid. No issue of authority was submitted to the jury, and we will assume in support of the judgment that the court found against appellant on such issue. The jury found that McBride's son voluntarily delivered the car to F. C. Beakley. The evidence shows that this delivery was made on F. C. Beakley's request and statement that his father would pay the charges upon his return; he also being absent.
Article 16, § 37, of the Constitution, provides that:
"Mechanics, artisans and materialmen of every class, shall have a lien on the buildings and articles made or repaired by them for the value of their labor done thereon or material furnished therefor, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."
This provision is self-executing. It creates the lien in the cases provided without the further aid of legislation; the province of the Legislature being to provide for the speedy and efficient enforcement thereof. "The lien does not depend upon the statute, and the Legislature has no power to affix to that lien conditions of forfeiture." Strang v. Pray,
A lien may be waived by express agreement or by implication from acts inconsistent with its continued existence. Cyc. vol. 25, p. 674; R.C.L. vol. 17, p. 606. It is said that:
"To sustain this loss of lien (that is by waiver) it must be placed on one or the other of two ideas; intentional waiver or from the loss of possession. As to the first, authority is abundant to show that one will not be held to waive a lien unless the intent be expressed or very plain and clear; the presumption is always against it." R.C.L. vol. 17, p. 606.
There was no express agreement in this case waiving the lien, and the taking of the note of F. C. Beakley did not have this effect. F.
M. Bank v. Taylor,
Now, the provision of the Constitution which we have referred to does not seem to make the existence of the liens therein provided for in any wise dependent upon possession; the carpenter and materialman in most instances would not have possession of the building or the land on which it was being erected, a mechanic working on personal property might or might not have possession thereof; yet the literal terms of this article apply in both instances. It is well recognized, of course, that possession has nothing to do with the lien in the case of the labor or material being furnished for a "building," and the only ground for thinking that a different rule might apply in the case work was done on an article of personal property would be on the theory that the Constitution in this respect was merely declaratory of the common-law lien in favor of the repairer of article of personalty. But that part of the article which creates a lien in favor of the mechanic and materialman furnishing labor and material for a building is not declaratory of the common law, as no such lien was given by the common law, and since it is thus evident that the framers of the Constitution were attempting, at least in the one case, to confer rights not known to such law, and the lien on the "article" repaired is given by the same language as the lien on the building, we would hardly be justified, on this theory, in limiting the literal application of the language of the Constitution to a mere possessory lien in favor of the workman repairing the article of personal property. So that if the character of the lien is to be determined by the Constitution alone, we think that possession is not to be considered as the essence thereof, and we come to consider the statutory provisions on the subject upon which defendants in error mainly rely for support of the judgment.
Article 5665, R.S., provides that mechanics are "authorized to retain possession of said article * * * (repaired) until the amount due on same for repairing by contract shall be fully paid off and discharged." Article 5666 provides for the retention of possession where no amount is agreed upon for repairing until the reasonable and customary compensation for such work shall be paid. Article 5667 authorizes the holder of such property, after such possession shall have continued for 60 days, without payment of charges thereon, to sell the same after notice provided for and apply the proceeds to the payment of such charges. These statutory provisions should not be construed as attempting to limit the constitutional mechanic's lien, unless that is their clear meaning, for, as we have seen, such is not the right of the Legislature. There are numerous authorities which establish that when material has been furnished or work done for the owner of a building the lien created by this same constitutional provision attaches as between the parties, and that a failure on the part of the lienholder to comply with the statutory regulations for filing the contract or account in order to fix the lien, though these provisions are mandatory in their terms, does not forfeit the lien. F. M. Bank v. Taylor, supra; Beilharz v. Illingworth, supra; Howell v. McMurry Lumber Co., supra; *1139
Johnson v. Amarillo Improvement Co.,
The cases of Ford Motor Co. v. Freeman, 168 S.W. 80, and Caldwell v. Auto Sales Supply Co., 158 S.W. 1030, are cited by defendants in error as authority for the proposition that the lien was lost by voluntary delivery of the car to the owner. In both these cases the automobile, after being repaired, was voluntarily delivered to the owner without payment of the repair charges, and subsequently the mechanic came into possession of the automobile by virtue of another bailment contract and then sought to retain possession thus acquired to enforce the payment of the previous repair charges, and the issue in both cases was as to the right of the mechanic to hold possession of the automobile unaer these circumstances. We assume that the actual holdings of the courts in these cases are correct; the repair man, having voluntarily relinquished possession of the automobile, might not thereafter retake possession and hold it as against the owner, for the Constitution which created the lien in the mechanic's favor did not authorize him to take possession from the owner of the article repaired, and hold it until his charges were paid, so that the attempt to do this would not be justified by the constitutional provision, and the statute itself authorized the mechanic to "retain possession," that is, continue the possession acquired by virtue of bailment for repair, and not retake possession once voluntarily relinquished. Those cases did not refer to the Constitution, but proceeded on the theory that the right of the mechanic was purely statutory — his possible right of possession was — and as that was all that was in issue in the case, there was no occasion to refer to the constitutional lien. We do not think those authorities apply in this case where the plaintiff in error is seeking to enforce his constitutional lien by a foreclosure in the courts.
We conclude, therefore, that the evidence is insufficient to show a waiver of the mechanic's lien, and will reverse that part of the judgment denying a foreclosure of such lien, and will render judgment in favor of plaintiff in error, granting him such relief in addition to affirming the money judgment of the court below. The costs in the county court and of this appeal will be taxed against defendants in error.
HUFF, O. J., not sitting, being absent in Austin sitting with committee of judges. *1140