97 So. 486 | Miss. | 1923
delivered the opinion of the court.
The appellee, Walker Auto Company, filed this suit of replevin to recover possession of a certain automobile which had been sold and delivered to one Seale, under a retention of title contract; the seller, Walker Auto Company, retaining ownership with the right to possession of the car in the event of default in the payment of the balance of the purchase money. Default having been made in the payment of the balance of the purchase money, ap-pellees replevied the car, whereupon the appellant, Moor-head Motor Company, intervened as claimant for certain repairs made on the car, at the instance of the purchaser, Seale, and for which a mechanic’s lien was claimed. Upon the issue between the claimant and the successful plaintiff, the latter relied upon its retained title in the car, and
The sole question in the case is whether the mechanic’s lien for repairs upon the car is superior to the title of the seller in the conditional contract of sale. The undisputed facts being that the seller, with retained title, did not authorize nor consent to the repairs, either expressly or impliedly, nor did it have any knowledge of such repairs. It is also true that the mechanic who made the repairs did not actually know that the title of the car was in the seller appellee, Walker Company.
There is another important point raised in the case, which Ave think, hoAvever, is unnecessary to decide, and that is whether or not the articles or items which are claimed to have been furnished as repairs are in fact repairs upon the car, or whether the articles are not to be considered merely as articles purchased for an automobile. A list of these items will appear herein later on. We shall not decide this question because the case will be settled upon another point, though it bears indirectly on the main question.
It becomes necessary to set out the agreed statement of facts between the parties, because after a perusal of the statement of facts it will not be difficult, we think, to decide the case in the light, of the rule announced in former cases by this court. The agreed statement of facts is as follows:
“It is agreed by and between the parties hereto that the above-styled cause may be tried by presiding judge without intervention of a jury upon the following agreed statement of facts, to-wit:
“On March 20, 1920, the plaintiff, H. D. Walker Auto Company, sold and delivered to the defendant, A. L. Seale, for his use, one Buick áutomobile, described in the writ of replevin herein, for the sum of one thousand, seven hun*70 dred and sixty-one dollars, and fifty cents, of which amount the defendant Seale paid in cash eight hundred and eighty dollars and seventy-five cents and on said date executed an delivered to said plaintiff his promissory title retention note for the sum of eight hundred and eighty dollars and seventy-five cents, which note was due seven months after date, and bore interest at the rate of six per cent, per an-num from date until paid, and providing for the payment of a reasonable attorney’s fee, if placed in the hands of an attorney for collection after maturity.
“Plaintiff, H. D. Walker Auto Company, retained the title in said contract of sale until said note was paid in full. Plaintiff did not record the conditional sale contract on the records of Sunflower county, Miss., in which county the defendant, A. L. Seale, resided at the time of said purchase. The plaintiff, H. I). Walker Auto Company, has its place of business in the city of Greenwood, Miss., at which place said sale was made.
“The said A. L. Seale, defendant, made default in the payment of said note, and on November 24, 1920, the plaintiff sued out a writ of replevin in said court against the defendant for said automobile, returnable to the March, 1921, term of said court.
“The claimant, Moorhead Motor Company, in due time filed its claimant’s affidavit, claiming a mechanic’s lien on said car, as shown by itemized statement attached to said claimant’s affidavit, filed in this cause in the amount of two hundred, thirty-nine dollars and thirteen cents.
“The defendant, Seale, made no defense against said action, and judgment was accordingly rendered against him and the sureties on his replevin bond in favor of the plaintiff. As shown by claimant’s itemized statement of bill of particulars, certain parts of said account on which claimant seeks to enforce his mechanic’s lien are for items sold the defendant, A. L. S'eale, and placed on said automobile by claimant without charge for such service, and used by defendant on his automobile, to-wit, the automobile in controversy, and the plaintiff contends that the*71 claimant bas no mechanic’s lien whatever for the following items, to-wit:
April 8. Three shots grease. $ .30
6 — 25. Car washed. 1.50
7 — 19. Greasing car... 1.50
7- — 9. Three pounds grease . 1.00
7 — 9. Four shots grease . .60
April 21. One 33x4 Hartford casing (or tire) .. 30.70
April 21. One.33x4 Hartford tube. 4.96
April 22. Car washed . 1.50
April 22. One pair pliers. .50
August 4. Eight quarts Cyl. oil. 2.80
August 4. Two gal. kerosene . .60
August 23. Charging battery . 2:00
August 23. Three tire changes . 3.00
August 25. Two 33x4 Miller casings. 81.76
August 25. Two 33x4 Hartford casings. 77.76
August 31. Three tire changes . 3.00
August 31. One boot. 1.00
September 7. Drain oil and 7 quarts Cyl. oil .. 2.80
September 7. One gal. coal oil. .30
September 9. Changing tire . 1.00
September 13. Grease . 1.50
September 13. Draining oil. .75
October 8. Changing tire . 1.00
October 9. Changing tire. 1.00
October 14. Changing tire . 1.00
October 15. Changing tire ... .:. 1.00
October 15. One tube . 4.50
October 27. Changing tire .•.*.. 1.00
October 26. Changing tire . 1.00
November 6. Changing tire. 1.00
“The claimant contends that he is entitled to a mechanic’s paramount lien for said items hereinabove set out, as well as other items attached to- claimant’s affidavit.
“The plaintiff contends that the claimant is not entitled to any lien whatever, superior and paramount to plaintiff’s lien, for the purchase money as evidenced by*72 the retention of title contract for any of the items listed in said account, and more especially for the items here-inabove enumerated.
“It is agreed at the time claimant sold the materials mentioned in said account to defendant, and performed the labors mentioned in said account, that the plaintiff did not know that said work was being done, or materials being furnished, and on said date the claimant did not know or had no actual knowledge of the existence of said retention of title contract, or that the said plaintiff had any claim whatever on said automobile.
“The defendant, Seale, has not paid the balance due on said automobile to plaintiff, nor has he paid the mechanic’s lien.
“It is agreed that all the items described in said account filed by claimant are correct.
“By agreement heretofore entered into between plaintiff and claimant, possession of said automobile was given plaintiff to be disposed of by plaintiff, and it is hereby agreed that should the court decide that claimant is entitled to recover against plaintiff — that is to say, that he has a lien prior and paramount to the plaintiff’s lien, or retention of title contract — then a personal judgment may be entered against plaintiff for the amount found to be due claimant, for which he is entitled to a lien on said automobile.
“The question submitted to the court is: Whose lien takes priority, and, if the claimant lias a lien, in what amount?”
It will be observed that the articles or alleged repairs named in the list which were furnished and used upon the car were not shown to be reasonably necessary for its preservation and operation, and to prevent deterioration. We find no proof or contention that the alleged repairs were necessary to preserve the property, as was true in the case of Broom v. Dale, 109 Miss. 52, 67 So. 659, L. R. A. 1915D, 1146. Nor do the facts show the instant case to be like the Broom case, in which the seller, with re
The rule announced in Hollis v. Isbell, 124 Miss. 799, 87 So. 273, 20 A. L. R. 244, has not escaped our attention. However, we do not understand the owner of personal property is required to give notice to innocent purchasers or mechanic’s lien men. The rule of caveat emptor as to the ownership and recovery of personal property has long-prevailed in this state; so it would make no difference whether the mechanic knew or did not know that the title to the car was in some other person than the one in possession when the repairs Avere made. Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; U. S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639.
Nor does it make any difference whether the owner knew that the repairs were being made on the car, if he authorized them either expressly or impliedly; nor would knowledge be essential, where the repairs were rasonably necessary to preserve the property and permit its ordinary operation, and prevent deterioration. Under these circumstances of necessity, authority of the OAvner to repair would be implied. This was the rule laid down in the Broom case; but no such necessity Avas shown in the Hollis case.
Therefore, in view of the facts in the case before us, and following the rule laid doAvn in the Broom case, we think the instant judgment should be affirmed, rejecting the claim of the mechanic and upholding the claim of the owners, because the case does not fall within the rule of Broom v. Dale. The rule that the owner is not liable for repairs to personal property, unless expressly or impliedly authorized, applies here. Miller v. Fisher, 116 Miss. 350, 77 So. 151.
Affirmed.
