Opinion
No. 22814
Decided June 17, 1931.
Liens — Common-law lien of artisan for repairing chattels — Liens not extinguished by removing chattels from lienholder's possession, when — Artisan's common-law lien subordinate to valid chattel mortgage — Replevin lies against artisan by chattel mortgagee.
1. An artisan, who furnishes materials or performs labor for the repair of chattel property, has a common-law lien upon such chattel property for the reasonable value of such labor and materials.
2. Such lien is not extinguished by removal of such chattel property from the possession of the lienholder without his consent.
3. The common-law lien of such artisan is subordinate to the lien of a valid chattel mortgage, properly executed and filed prior to the performance of labor or furnishing of materials by such artisan.
4. An action in replevin will lie against such artisan on behalf of such chattel mortgagee.
CERTIFIED by the Court of Appeals of Cuyahoga county.
This was an action in replevin instituted by the American Finance Company, as holder of a chattel mortgage, against one Karr, owner of an automobile, and the plaintiff in error, The Cleveland Auto Top Trimming Company. The plaintiff in error, at the time of the institution of the action, had possession of an automobile under a claimed artisan's lien for labor and material expended upon the machine at the request of the owner. The municipal court of Cleveland gave judgment for the defendant in error. The Court of Appeals affirmed this judgment and certified the case to this court as being in conflict with a judgment pronounced upon the same question by the Court of Appeals of the Second Appellate District in affirming the case of Good v. Meyer Mendoza, 31 O. D. (N. P.), 305.
The present case was heard upon an agreed statement of facts, which reads in its material portion as follows:
"That on June 3, 1929, the defendant Karr purchased an automobile from The MacQuown Service Company, giving in part payment therefor a note in the amount of $616.88, secured by a chattel mortgage on the automobile. On the same day this note and mortgage were purchased by the plaintiff. Defendant Karr took possession of the automobile and in the course of its operation wrecked it and delivered it to the defendant, The Cleveland Auto Top Trimming Company, and ordered repairs, which were made by The Cleveland Auto Top Trimming Company, and that the fair and reasonable charge therefor was $257.00, and said Company claims a common law lien for such work and in such amount and held said automobile in its possession under its lien until in this action the bailiff took the same upon replevin instituted by plaintiff.
"That the payments on the note and mortgage. were in default, that the chattel mortgage had been duly filed with the County Recorder, and that the note and mortgage were introduced in evidence as Plaintiff's Exhibits 1 and 2."
Mr. Lawrence M. Rich, for plaintiff in error.
Mr. James F. Conners, Jr., and Mr. John A. Lombard, for defendant in error.
The plaintiff in error contends that replevin does not lie in favor of the chattel mortgagee against an artisan with a valid common-law lien. Its argument is that replevin is a proceeding on behalf of the owner for recovering possession of his own, and since the gist of the action is the right to possession, the artisan who has a right to possession under his common-law lien cannot be forced to surrender possession in the replevin action. Moreover, it claims that the artisan's lien is cut off if replevin lies.
We do not agree with this contention. If the chattel mortgagee in a replevin action secures possession of the property, that fact cannot deprive the artisan of his claim to a lien for work and labor expended upon the machine. His lien is not destroyed by the removal of the chattel property from his possession without his consent. 17 Ruling Case Law, 607; Gardner v. LeFevre, 180 Mich. 219, 146 N.W. 653, Ann. Cas., 1916A, 618. In this case, upon the trial, the judge directed the jury to find that the title to the automobile was in the plaintiff, but that the defendant had a lien thereon for the balance due on account. This judgment was affirmed. It is only a voluntary surrender of possession which deprives the lien claimant of his right to enforce his lien by proper proceedings.
Moreover, the mortgagor could not contract a debt giving rise to a lien upon the mortgagee's property without the mortgagee's authority.
As stated in the case of Storms, Admx., v. Smith, 137 Mass. 201, by Justice Holmes: "If a mortgagor in possession of personal property removes and stores it with a third person, who has no actual notice of the mortgage, which is recorded, the mortgagee, who afterwards is informed of the removal and storing, and expresses no disapproval of the same, is not liable to such person for the charges for storage, although the storage is necessary for the preservation of the property, but may maintain an action against him for its conversion."
Justice Holmes, in the opinion, says: "The mortgagor of the chattels was personally liable to the defendant for their storage, and he could not subject the mortgagee's interest to a lien in support of his debt without the mortgagee's authority. The mortgagee had given no authority other than what was to be implied from his allowing the mortgagor to remain in possession of the mortgaged goods, coupled with the fact that it was necessary that the goods should be stored somewhere to prevent their destruction. If these circumstances were enough to support the defendant's claim, every mortgagor in possession of perishable goods would have power to create a paramount lien upon them, although the proviso against suffering them to be attached, or attempting to sell or remove them in the form of chattel mortgage commonly used, indicates pretty clearly that no such power is intended to be given. But these circumstances are not enough. The mortgage was recorded, and the defendant therefore had notice of it. Hence he was not at liberty to assume that the mortgagor had an absolute jus disponendi from his possession alone; and, if storage was necessary, he was chargeable with notice that the plaintiff had a right to judge for himself where it should be, if his interest was to be charged with the cost."
It was held in the case of Metropolitan Securities Co. v. Orlow, 107 Ohio St. 583, 140 N.E. 306, 32 A. L. R., 992, that the chattel mortgagee in a foreclosure proceeding has a prior claim to a mechanic who claims possession of an automobile under an artisan's lien.
Since the lien of the chattel mortgage is superior to the lien of the garageman, and the right of the artisan to claim a lien upon the proceeds of sale is not extinguished by the involuntary loss of possession, we affirm the judgment of the Court of Appeals.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY and KINKADE, JJ., concur.
ROBINSON, J., concurs in propositions 1, 2 and 3 of the syllabus, but dissents from proposition 4 and the judgment.