Summary
In Martin v. Broadhead, 202 Miss. 281, 32 So.2d 433 (1947) the owner of a truck brought a replevin action against Martin, the mechanic who made repairs upon it at the request of McNeill, who had leased the truck from the owner with an agreement that lessee would pay for repairs. The repairs were necessary to preserve it and keep it in operation.
Summary of this case from Taylor v. ElliottOpinion
No. 36556.
September 22, 1947.
APPEAL AND ERROR.
The assignment of error in Circuit Court was part of record of trial in that court from county court, and would not be struck but the briefs thereon, filed in the Circuit Court, were not properly part of record to be transmitted to Supreme Court on appeal, and would be struck (Rules of the Supreme Court, rule 2).
ON MERITS. (Division B. Oct. 27, 1947. Suggestion of Error Overruled Nov. 10, 1947.) [32 So.2d 433. No. 36556.]AUTOMOBILES.
Where lease, which provided that lessee should keep motor truck in repair and that if lessee failed to pay for repairs lessor might pay for repairs and charge amount thereof against lessee as rent, was not cancelled by lessor's vendee, garageman, who made repairs for lessee after being notified not to make repairs without work-orders from vendee, and who retained possession of truck, had a mechanic's lien on truck and vendee was not entitled to possession in replevin action (Code 1942, sec. 353).
APPEAL from the circuit court of Lauderdale county. HON. JESSE M. GRAHAM, J.
Edwin A. Dunn, of Meridan, for appellant.
The owner of personal property is not 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 were made.
Moorhead Motor Co. v. H.D. Walker Auto Co., 133 Miss. 63, 97 So. 486.
It does not 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 reasonably necessary to preserve the property and permit its ordinary operation and prevent deterioration. Under these circumstances of necessity, authority of the owner to repair would be implied.
J.A. Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659; Billups v. Becker's Welding Machine Co., 186 Miss. 41, 189 So. 526; Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N.W. 966, 40 L.R.A. 761, 69 Am. St. Rep. 719; Grinnell v. Cook, 3 Hill (N.Y.) 491, 38 Am. Dec. 663; Williams v. Allsup, 10 C.B. (N.S.) 417; 3 R.C.L. 56.
No notice was ever given by Broadhead or his agents to appellant not to repair the truck without their said permission. Carl McNeil was not an employee or servant of Dixie Planing Mill or the appellee Broadhead; his only relation with them, other than that of a timber cutting contractor, was that of a mortgagor in possession of the property, and by virtue of the terms of said "lease agreement" and the circumstances of necessity under which the repairs were made, he was the designated agent of the appellee, as mortgagee. This matter constituted an issue of fact and the trial court found on this issue of fact in favor of the appellant here. It is a general rule that the finding of fact on conflicting testimony by the trial court will not be disturbed on appeal.
McKeithen et al. v. Bush, 201 Miss. 664, 29 So.2d 310; Young v. Elgin (Miss.), 27 So. 595; Coleman v. White (Miss.), 38 So. 336; Simmons v. Hutchinson, 81 Miss. 351, 33 So. 21; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Wilson v. Beauchamp, 50 Miss. 24; Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; Alabama V.R. Co. v. Bolding, 69 Miss. 255, 13 So. 884.
The said lease agreement cannot be construed as meaning other than that there was an express agreement of consent by the assignee, Sam Boadhead, appellee here, for Carl McNeil to have the truck repaired when necessary and to keep same in repair, while said lease agreement was in force and effect, and this Court is doubly warranted in holding under the circumstances that the appellee as a prior lien-holder has waived his lien and agreed to subordinate it to that of the appellant as a subsequent lien-holder.
S.M. Graham, of Meridian, for appellee.
On February 8, 1945, Dixie Plaining Mill Company leased the truck in suit to Carl McNeil by written lease. On November 8, 1945, the Dixie Planing Mill Company transferred all of its right under this lease to Sam Broadhead, along with an account it held against McNeil for some $26,000. Broadhead, in buying out the Dixie Planing Mill Company, bought on condition that Mr. R.E. Vordem Esche, production manger of the Dixie Planing Mill Company, should come with Broadhead for a period of a year to assist Broadhead in handling the assets he had taken over from the Dixie Planing Mill Company, and the said Vordem Esche represented Broadhead from and after said sale. Vordem Esche gave notice to C.A. Martin on November 14, 1945, not to make further repairs, and Martin admits getting the notice and says that it was about October 15, 1945, and it is admitted that notice was given not to make any further repairs to said equipment and trucks in the possession of McNeil because McNeil owed more money than his equipment and machinery was worth, and that all future repairs would have to be made on order blanks of Dixie Planing Mill or Sam Broadhead. No notice was given to either the Dixie Planing Mill or to Broadhead of the repairs, and no authorization was had from either of them for the repairs to be made, said repairs being made as reflected by invoices dated January 3, 1946, December 4, 1945, and November 26, 1945. Martin testified that he was looking to McNeil for his money, that McNeil had always theretofore paid him. 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. Therefore, the defendant Martin waived his rights to claim a lien against said truck, and Broadhead is entitled to the possession of the truck in question free of any lien against same.
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 consent, express or implied; otherwise the bailee has no lien, and the true owner on demand is entitld to a delivery thereof without satisfying any charges which may have accrued in favor of the bailee against his bailor.
3 R.C.L. 133, Sec. 55.
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 of the prior right.
3 R.C.L. 133, Sec. 55.
Appellee filed a motion herein, with due notice to appellant, to strike pages 68 to 89 of the record, on the ground that "said matter is made up of an assignment of error, statement of facts and brief and reply brief on appeal from the County Court to the Circuit Court of Lauderdale County, and that it is improperly embodied in the appeal record, and only serves to encumber the record."
The assignment of error in the Circuit Court is a part of the record of the trial in that court from the County Court, and not due to be stricken. But the briefs thereon, filed in the Circuit Court, are not properly part of the record to be transmitted here on appeal and should be stricken. They should not have been incorporated therein.
Rule No. 2 of this Court directs what the transcript of the record in the trial court should contain, and no provision is made therein for incorporating briefs filed in a lower court. 161 Miss. 903.
The motion, therefore, is sustained as to the statements of fact, arguments and briefs filed in the Circuit Court, set forth on pages 71 to 89, inclusive, of the transcript here; but overruled as to the assignment of errors, on pages 68 to 70, inclusive, of the transcript.
So ordered.
This is an action in replevin, originating in the County Court of Lauderdale County, where the writ of replevin filed by Mr. Broadhead was dismissed. He appealed to the Circuit Court; and there, the judgment of the Circuit Court was reversed, and judgment rendered in favor of Mr. Broadhead, sustaining the writ of replevin and awarding him possession of the truck, which is the subject matter of the litigation. From the judgment of the Circuit Court Mr. Martin appealed here.
The facts are that one McNeill, a timber contrator, was employed by the Dixie Planing Mill to cut timber from their lands and to haul lumber and logs. On the 8th day of February, 1945, McNeill leased from the Dixie Planing Mill the truck involved, with an option of purchase under certain terms and conditions, not here necessary to set forth. However, this lease contained this pertinent provision: "The lessee agrees to keep said property in repair and to pay all expenses therefor and in case of failure to pay for repairs by lessee the lessor may pay for same and charge the amount against lessee as rent."
On or about January 3d 1946, McNeill carried the truck to Martin's Garage for certain repairs necessary to its continued operability. On November 8, 1945, Dixie Planing Mill sold out to Mr. Broadhead, appellee here. Appellant and others were called into a conference and informed of the sale of the milling company to Mr. Broadhead, and all bills were paid for which work orders had been given. It was also announced that all of Dixie Mill's property was under deed of trust or lease agreement to Mr. Broadhead, and that neither one of the two contracting parties would thereafter be responsible, and that the individual operators were responsible for bills incurred by them. So testified a witness for appellee, Mr. Vordem Esche, a former employee of Dixie Planing Mill, who transferred to the service of Mr. Broadhead after the aforesaid trade. However, Mr. Martin, the appellant here, denied that he was required by notice to have work-orders on McNeill. So, when McNeill brought the truck into his shop for repairs in November and December 1945, and January 3d 1946, for repairs, he made them, as he had been accustomed to do. He said he later requested McNeill to settle, as he was expecting to get his money out of McNeill. McNeill said he was unable to pay the bill.
It will be borne in mind that on January 16, 1946, McNeill transferred everything he owned to Mr. Broadhead, to whom he was indebted in a sum of approximately $26,000. This was, however, approximately two weeks after the last repairs to the truck had been completed, and approximately two months after the date of the transfer to Mr. Broadhead of its property by Dixie Planing Mill.
In the meantime, the lease was not taken up, or cancelled, or sought to be, and the truck continued in the possession and control of Mr. McNeill, and was operated by him. So, when he left the truck with Martin's Garage for what appears, from the record, to have been necessary repairs, he was still under contractual obligation to "keep said property in repair and pay all expenses therefor and in case of failure to pay for repairs by lessee the lessor may pay for same and charge the amount against lessee as rent."
The lease became the property of appellee, Broadhead, on November 8, 1945, as did the truck, but McNeill no longer worked for Dixie Planing Mill, to whose rights and obligations appellee Broadhead succeeded. Therefore, as we see it, McNeill under the circumstances, and his contract, was required still to keep the truck in repair, and pay the expense thereof, but on failure of him to do so, the lessor (by then, Mr. Broadhead) was to do so and charge the amount to McNeill as rent. On January 3, 1946, the repairs had been completed, and, as stated, on January 16, 1946, McNeill made over everything he owned to appellee Broadhead, and thereby became insolvent, so that paying the mechanic's bill by appellee and charging same to McNeill would have amounted to little more than a bookkeeping entry. However, that was no fault of Martin's Garage. During this period, the truck was still in the shop of appellant Martin, whose demand for payment having been denied, he refused to surrender possession of the truck. On January 24, 1946, appellee sued out this writ of replevin for possession of the truck.
As pointed out, supra, the judgment of the County Court was in favor of the mechanic, appellant here, Mr. Martin, and the Judge of that Court, in his opinion said: "In view of the lease agreement providing that he, (McNeill) as lessee, was to keep it in repair, the Court is of the opinion that inasmuch as Mr. Martin continued to retain possession of the truck until the time of the replevin, that the plaintiff (Mr. Broadhead) is not entitled, under all the facts in this case, to the right of possession of the truck at this time. Therefore the writ of replevin will be dismissed at the cost of the plaintiff" (Mr. Broadhead).
In the Circuit Court, the judgment of the County Court was reversed and judgment rendered for Mr. Broadhead, the Judge saying: "That no notice was given to either the Dixie Planing Mill or to Mr. Sam Broadhead of these repairs and no authorization was had from either of them for these repairs to be made; said repairs being made as reflected by invoices dated January 3, 1946, . . . December 4, 1945, and November 26, 1945. It is therefore the opinion of the Court that the defendant, C.A. Martin, waived his rights to claim a lien against said truck, and that Mr. Sam Broadhead is entitled to the possession of the truck in question free of any lien against same. The proof is undisputed that notice was given by the agent of Broadhead not to make any repairs without an order, and the defendant himself said that he was looking to McNeill for his money, that he had always heretofore paid him."
In this opinion, we think the learned Circuit Judge was wrong. As we read the record, evidence was not lacking in contradiction of the alleged notice to Martin's Garage, to which the trial judge referred as "undisputed." However, even if such notice had been given, as appellee claims, we refuse to decide whether it would have freed Broadhead or McNeill from liability for the repairs, or would have pre-empted the truck from liability of a mechanic's lien for necessary repairs.
The fact that Mr. Martin said he looked to McNeil, strengthens rather than weakens his position, for the reason that the repair clause of the contract provided that the lessee McNeill, pay the expenses of the repairs. Then, upon his failure to do so, appellant was right in demanding payment from Mr. Broadhead, appellee here, who had then become the lessor, instead of Dixie Planing Mill.
This is so, because the same repair clause, in the lease, further provided that upon failure of the lessee to pay, the lessor would do so, and charge it to the lessee as rent. During all the time, from November 8, 1945, to and including January 3, 1946, it must be borne in mind, we reiterate, that the lessee McNeill continued to have the truck under his control and possession, and the lease had not been taken-up, or cancelled, so that appellant Martin under the statute had the continuous right to look to the truck, as provided by Section 353, Code 1942, for a mechanic's lien as the ultimate security for payment of the repairs. Appellant, Martin, had the truck in his custody, when he was made defendant by appellee in this replevin action. The statute provides that "the mechanic to whom the price of said labor and material may be due shall have the right to retain possession of such things so constructed, manufactured, or repaired until the price be paid."
We have held that "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 were made." Moorhead Motor Co. v. H.D. Walker Auto Co., 133 Miss. 63, 97 So. 486, 487, and the autorities therein cited. In the same opinion we also said: "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 reasonably necessary to preserve the property and permit its ordinary operation, and prevent deterioration. Under these circumstances of necessity, authority of the owner to repair would be implied." In the case at bar, one of the conditions of the lease required the lessee to keep the truck repaired when necessary, as the evidence shows it to have been here.
But, argues appellee, the notice to Martin to make no more repairs without a work-order changed all of that and abrogated the stated provision of the lease. The answer is that the lease remained in force and McNeill remained in possession of the truck, under the mandatory contractual duty to repair. The power and duty to do so was obligatory upon him. The County Judge heard the case on conflicting facts, resolved them in favor of appellant, and held all parties to the terms of the contract, on which he based his decision. In our judgment, the County Court was correct, and the reviewing Circuit Court was wrong in reversing the lower court's judgment and rendering one in favor of appellee, on the record before it and us. We do not believe that appellant Martin did anything which can rightfully, according to the circumstances, the contract, and the law, be said to constitute a waiver of his mechanic's lien upon this truck.
It is our conclusion, therefore, that the judgment of the Circuit Court be and the same hereby is reversed and judgment entered here for appellant, dismissing the writ of replevin, as directed by the County Court.
Reversed and Judgment here for appellant.