Opinion
September 25, 1930.
1. — Replevin. Where plaintiff in a replevin case takes possession of property, the defendant, if he prevails in the trial of the cause, may have his option to recover the value of the property in lieu of its return.
2. — Same. In a replevin case where it develops that the defendant has special interest in the property as lien for labor or work, he may have personal judgment against plaintiff who took possession of property under the writ to the extent of such personal interest.
3. — Statutes. Section 7278, Revised Statutes 1919, being in derogation of the common law should be strictly construed.
4. — Automobiles. Section 7278, Revised Statutes 1919, does not take away the mechanics common law lien for work done on automobile but really gives the artisan or mechanic additional rights, to wit: (1), Lien for storage, which he did not have at common law, and, (2), if he secures a written memorandum from the owner for work to be done, such statement will continue the lien after mechanic has parted with possession, if purchaser or other person takes with notice of such lien.
5. — Chattel Mortgages. Mechanics lien for work done on automobile is superior to lien of chattel mortgage not recorded at time mechanic began work on such automobile (section 7280, Revised Statutes 1919).
Appeal from the Christian County Circuit Court. — Hon. Robert L. Gideon, Judge.
AFFIRMED.
Moore Moore for appellant.
A stipulation, permitting the mortgagee to take possession, on default of any installment of a debt due, gives the right of replevin for possession when such condition appears. 11 C.J. 697; McMillon v. Grayson, 83 Mo. App. 425. Under the clause in a mortgage, as to a sale or attempted sale, or where the mortgagee deems himself insecure, any act on the part of the mortgagor, or the conversion or attempted conversion of such property, or the taking possession of same by a second mortgagee or person claiming such property, gives the first mortgagee the right to the possession, and certainly replevin will lie. Baking Co. v. Comm. Co., 80 Mo. App. 438; 11 C.J. 554; Fuller v. McKillip, 10 Mo. App. 61; Bank v. Abernathy, 32 Mo. App. 211. Keeping in mind the question of storage of this vehicle is not in question, and defendant relies upon a lien to hold such property for work, labor and material furnished. The question arises, what gives such lien on a motor vehicle. "Every person who shall keep or store any vehicle or part or equipment, shall for the amount due have a lien; and every person who furnishes his labor or material, on any vehicle, part or equipment, who shall obtain a written memorandum of the work, materials, etc., signed by the owner, shall have a lien for the amount of work, labor, material, etc." R.S. 1919, sec. 7278, art. 7. And on this statute defendant's right must be governed, any common law to the contrary notwithstanding, as section 7283, Revised Statutes 1919, defines the word vehicle used in this article to be vehicles drawn by horses, etc. and motor vehicles. At common law, a lien was the right to retain possession of personal property until some debt due thereon or secured by such property, is satisfied. Keonig v. Fur Co., 260 S.W. 756; 37 C.J. 306, which defines mechanics' and artisans' liens at common law. By the civil law, a lien is a right to detain a thing until a demand is satisfied. Ames v. Dyer, 41 Me. 397. Statutory liens are those declared by statute over a given subject, and no lien attaches unless there is a substantial compliance with the statute. Peay v. Field, 30 Ark. 600. And a mere promise to pay a debt can never create a lien. Peo. v. Cal. Safe Co., 167 P. 181.
G. Purd Hays for respondent.
(1) The verdict and finding of the court was for the right party. Under the law the defendant was entitled to a lien until the bill was paid and if not paid could hold the automobile till the bill was paid, as he, the garage man doing the labor and furnishing the material, had not parted with the possession of the said automobile. Cody v. Vaughan, 53 Mo. App. 169; Honig et al. v. Knipe, 25 Mo. App. 574; Sec. 7278, R.S. 1919. That the last clause of section 7278, Revised Statutes 1919, reads: "Or be placed in the possession of the person furnishing the labor or material . . ." That the automobile was in the possession of the said Ed. Workman, defendant, who refused to give it up and the plaintiff replevied it. Defendant in his answer could claim lien. Davis v. Morgan Foundry Co., 23 S.W.2d 231. (2) No person can take the property from the one entitled to or having the lien unless they pay the amount due thereon unless he has a prior lien by a duly recorded chattel mortgage which the evidence of plaintiff shows was not recorded when the lien for the labor and material was furnished by the defendant, Ed. Workman. Montieth v. Great Western Printing Co., 16 Mo. App. 450; Sec. 7280, R.S. 1919; Kansas City Automobile S. Co. v. Holcker-Elberg Mfg. Co., 182 S.W. 759.
Action in replevin for possession of an automobile. Trial by the court who found for defendant and rendered personal judgment in favor of defendant against plaintiff for $38.60.
Plaintiff sold a used automobile to Mr. Leonard Gideon and took back an installment note and chattel mortgage for part payment of the purchase price. This chattel mortgage was executed July 18, 1929, and recorded August 2, 1929. Mr. Gideon took the car to defendant, who operated a garage and repaired automobiles, and directed him to place on it whatever repairs it needed. Defendant furnished and placed in the car a number of repairs such as pistons, connecting rods, shift bearings and oil rings, etc., to replace those that were so badly worn they needed replacement. These and his labor on the car amounted to $38.60. The first work on the car was done July 30, 1929. The car had then been in defendant's garage two or three days and a few days later the work was completed but Mr. Gideon did not pay defendant and took the car out. About the time defendant had completed the work plaintiff came to him and demanded possession of the car under his chattel mortgage. One installment was due on the note and under the terms of the mortgage plaintiff was authorized to take possession of the car. Defendant refused to deliver the car to plaintiff and this suit followed. The court sitting as a jury found the facts to be that Leonard Gideon was the owner of the car when he took it to defendant to be repaired. That one installment of $7.50 was due plaintiff at the time this suit was begun. That the chattel mortgage of plaintiff was not on file until after the work on the car by defendant had been commenced and almost completed. That the labor done and material furnished by defendant was of the value of $38.60. That defendant had the right to hold the car until this amount was paid. The constable had taken possession of the car under the writ of replevin and delivered it to plaintiff who had possession of it at the time of the trial. The court then rendered judgment against plaintiff for $38.60, the amount found to be due defendant for repairing the car.
Appellant makes the point that the trial court could not render a personal judgment against plaintiff. In actions in replevin where, as in this case, the property is taken from the possession of defendant and delivered to plaintiff under the writ and at the trial the defendant prevails, he is entitled to his option to recover the value of the property in lieu of requiring the property to be returned to him. The interest of defendant in the property in this case was a special interest and its value was $38.60, the amount of his lien for material and labor on the car. In the absence of a showing that the property was of less value than the amount of defendant's lien, we can see no reason why he cannot exercise his option to take a personal judgment for the value of his interest. This point must be ruled against appellant.
The real question in this case is whether or not defendant had a lien at all for labor done and material furnished in repairing the car. Appellant contends that defendant had no lien because he did not secure from the owner, Leonard Gideon, a memorandum in writing as required by the statute. The statute referred to, section 7278, Revised Statutes 1919, is as follows: "Every person who shall keep or store any vehicle, part or equipment thereof, shall, for the amount due therefor, have a lien and every person who furnishes labor or material on any vehicle, part or equipment thereof, who shall obtain a written memorandum of the work or material furnished or to be furnished signed by the owner of such vehicle, part or equipment thereof, shall have a lien for the amount of such work or material as is ordered or stated in such written memorandum. Such lien shall be on such vehicle, part or equipment thereof as shall be kept or stored or be placed in the possession of the person furnishing the labor or material."
"The question here is whether this statute destroys the common law lien of an artisan who furnishes labor or material in the repair of a vehicle and requires that he secure a written memorandum from the owner before he can secure a lien. We do not think the statute goes that far. It does not, in terms, undertake to take away from the artisan any right that he had before the statute was enacted. Had this statute not been enacted the defendant in this case would have had a lien for labor and material as long as he kept the vehicle in his possession but no longer. Had he voluntarily parted with this possession he would have lost his lien. Section 7280 of the same article in the statute provides that when a written memorandum is obtained from the owner the lien shall be good as against any person who shall purchase with notice of the lien. When these two sections are construed together we think they mean to take no right away from an artisan but meant to give him two rights which he did not have at common law. The statute gives him the right to a lien for the price or value of storage which he did not have at common law. The other is that if he secures a written memorandum from the owner stating what had been done or was ordered to be done, then that statement would continue the lien after the artisan had parted with possession providing a purchaser or other person took possession with notice of the lien.
It is familiar law that statutes which are in derogation of common law are to be strictly construed. That means, as we understand the rule, that no statute is to be construed as taking away from a party any right existing under the common law unless such construction is clearly required by the language of the statute. No language in our statute pretends to destroy any existing right. As to labor and material furnished, the artisan had a lien under the common law before the statute was enacted. The statute then should not be construed as taking that right away without an express provision to that effect. Our conclusion is that the common law lien of an artisan, as was this defendant's was not destroyed by the statute and since defendant insisted on retaining possession of the car on which he had expended labor and furnished material until his rightful charges were paid, he was merely asserting his common law right and the plaintiff cannot deprive him of possession by replevin or otherwise until these charges are paid.
The question of priority between the lien of defendant and that of plaintiff under his chattel mortgage was settled by the finding of the court sitting as a jury that defendant began work on the car before the chattel mortgage was filed for record. [Sec. 7280, R.S. 1919.]
The judgment will be affirmed. Bailey and Smith, JJ., concur.