Opinion
No. 4303.
Argued April 7, 1954.
Decided May 19, 1954.
Where it could be found on the evidence in a trover action that certain labor and materials were expended by a garageman upon a truck, winch and dredging scoop as a unit and under a single contract, a common-law lien attached to all the property when the owner failed to pay for work done on the scoop.
The statute (R. L., c. 264, s. 39, as amended) providing for liens on motor vehicles does not supersede or restrict the common-law lien which exists in favor of one who expends labor and materials upon another's property as requested.
The failure to charge the jury upon a vital issue after the matter had been sufficiently called to the Trial Court's attention entitled the defendant to a new trial.
Exceptions which are neither briefed nor argued are deemed waived.
CASE IN TROVER, for conversion of a truck and winch, tried together with a cross action of assumpsit for labor and services performed and materials expended on the truck and on a dredging bucket. Trial by jury resulting in a verdict of $1,500 in favor of Willard G. Hiltz and Herbert D. Hiltz in the trover action and $350 in favor of Gould in the assumpsit action. Counsel for Gould excepted to the refusal of the Court to instruct the jury as to his rights under the common-law lien, and also to the Court's denial of motions to set both verdicts aside.
About September 4, 1952, the Hiltz brothers and Gould agreed that the latter was to construct a dredging bucket or scoop to be used by the Hiltzes in dredging operations on their property. Some two weeks later Hiltz brought to Gould a truck with a winch bolted to the truck chassis and asked Gould to weld the lower braces on the frame of the truck so as to make it stronger. Gould testified he understood the winch, the truck, and the scoop were all to be used as a unit but the Hiltzes denied this and claimed the truck was only for the purpose of carrying the winch from place to place as the dredging progressed. After the scoop was completed and the welding done on the truck the Hiltzes sought to take their property. They offered to pay for the work done on the truck but declined to pay for that done on the scoop and Gould refused to let them have any of the articles until the entire bill was paid. Further facts appear in the opinion. Transferred by Wheeler, C. J.
Frederic W. Harrington, Jr. for Willard G. Hiltz and Herbert D. Hiltz.
Maynard Batchelder (Mr. Batchelder orally), for Charles A. Gould.
The question here is whether it could be found that the defendant Gould in the trover action had a common-law lien on all the articles deposited with him by the Hiltz brothers in addition to any right he might have under our garageman's lien statute, which the plaintiffs claim alone could apply here. R. L., c. 264, s. 39, as amended by Laws 1949, c. 58, s. 2, reads as follows: "Any person who shall, by himself or others, perform labor, furnish materials, or expend money, in repairing, refitting or equipping any motor vehicle . . . under a contract expressed or implied with the legal or equitable owner, shall have a lien upon such motor vehicle . . . so long as the same shall remain in his possession, until the charges for such repairs, materials, or accessories, or money so used or expended have been paid." For many years prior to the passage of our first statute on this subject (Laws 1925, c. 90, s. 1) there existed here and elsewhere a lien at common law in favor of anyone who upon request expended labor and materials upon another's property. Shapley v. Bellows, 4 N.H. 347, 353; Wilson v. Martin, 40 N.H. 88, 90, 91; 53 C. J. S. 836. There is nothing in the wording of our law to indicate that the Legislature intended to supersede or restrict the common-law lien and indeed such an interpretation would be contrary to the construction generally given such statutes. Braufman v. Hart Publication, Inc., 234 Minn. 343, 350; Jones on Liens (3rd ed.) 93; Sutherland, Statutory Construction (3d ed.) s. 7002; Crawford, Statutory Construction, s. 335. It has long been recognized in this state that with one exception (Standish v. Moldawan, 93 N.H. 204) common-law and statutory liens may exist together and operate in aid of each other. Towle v. Raymond, 58 N.H. 64. The common-law lien would become effective here and a defense to the trover action for the truck and winch if the defendant did all the work under the same contract. Diamond Match Co. v. Trust, 98 N.H. 97, 99, and case cited; Braufman v. Hart Publication, Inc., supra; 25 A.L.R. (2d) 1037 n. Admittedly he worked on both the truck and the scoop. The winch was bolted to the truck and there was evidence that the winch, scoop and truck were to be operated together. One of the plaintiffs himself spoke of the property as "my unit." The defendant testified that the entire job was "billed as one bill, and it's altogether, one job." True, there was conflicting testimony on this and other issues, but these were for the jury to resolve. Giguere v. Railroad, 86 N.H. 294, 298.
The Court charged solely as to the statutory lien and never did mention the common-law lien nor the law applicable to it. The charge as given permitted the jury to determine whether the winch was an "accessory," as defined in the statute, to the truck or whether all the articles comprised a unit. But it did not make it reasonably clear to the jury, as is necessary (Davis v. State, 94 N.H. 321), that they could find that the work was all done under single contract and hence the common-law lien attached to all the property because the defendants refused to pay for the scoop. Braufman v. Hart Publication, Inc., 234 Minn. 343; 25 A.L.R. (2d) 1037 n. This was an error relating to a vital issue and as it was sufficiently called to the Court's attention, the exception must be sustained. Nickerson v. Bentley, 89 N.H. 533.
Since in the assumpsit action brought by Gould against the Hiltz brothers to recover for the value of his services, he has neither briefed nor argued any exceptions, they are deemed waived. The order is
In Hiltz v. Gould: New trial.
In Gould v. Hiltz: Judgment on the verdict.
All concurred.