Summary
In Funchess, the question was whether the appellant, through stipulations that included an itemized list and no other testimony, showed he had a valid mechanic's lien and whether the repairs were reasonable and necessary. Funchess, 205 Miss. at 512, 39 So.2d at 1.
Summary of this case from Caterpillar Fin. Servs. Corp. v. Burroughs Diesel, Inc.Opinion
February 28, 1949.
1. Mechanic's lien — conditional sales contract — priorities of liens.
A mechanic who claims a lien for repairs to an automobile truck has burden as against a conditional sales seller with title retained to show that the labor and materials furnished by him constituting the basis of his lien were reasonably necessary to preserve the truck, to enable it to operate in the ordinary way and to prevent deterioration, and he must show the amount secured by his lien.
2. Mechanic's lien — stipulation as to items furnished.
The mechanic who claims a lien for repairs of a truck must show that the items were actually for repairs as distinguished from articles purchased for an automobile or for fuel to operate it; and when a stipulated list of articles alleged to constitute repairs is so uncertain that it cannot be dependably found therefrom whether the articles were actually for repairs and if so whether they were reasonably necessary to preserve the property and enable it to oprate in the ordinary way and to prevent deterioration, the court is justified in declining to recognize them as entitling the mechanic to the lien demanded.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Lincoln County; J.F. GUYNES, J.
J.N. Yawn and Lotterhos, Travis, Dunn, for appellant.
It is a well established rule of law in this state that a mechanic's lien is superior to a mortgage or retained title lien where the subject is machinery and repairs are involved. The mortgagor in possession, where continued use is contemplated, has mortgagee's legally implied consent to procure repair in order to permit the continued operation to preserve the property or to prevent deterioration. In such cases, the mortgage lien is subordinated to the machnic's lien by consent implied in law. Broom Son v. S.D. Dale Sons, 109 Miss. 62, 67 So. 659, L.R.A. 1915D, 1146; Hollis Ray v. Isbell, 124 Miss. 799, 87 So. 273; Morehead Motor Company v. H.D. Walker Auto Company, 133 Miss. 63, 97 So. 486; Wingate v. Miss. Security Company, 152 Miss. 852, 120 So. 175; D'Van Motor Company v. Bailey, 177 Miss. 441, 171 So. 342; Shoemake v. Federal Credit Company, (Miss.) 191 So. 62; and General Motors Acceptance Corporation v. Shoemake, 192 Miss. 446, 6 So.2d 309.
We think the general rule, as substantially above stated, is unquestioned. The question here is whether the itemized list of repairs admittedly made to the truck comes within the rule, there being no affirmative expert testimony as to the necessity thereof or affirmative statement to characterize the same as being either necessary or unnecessary.
Note, if the court please, that the trial judge did not undertake to pass upon the quality or character of the repairs, and did not consider the itemized list as any evidence bearing upon the question whatsoever. On the contrary, the trial judge considered, and so stated in effect, that the record contains no evidence whatever tending to shed light on the question at issue.
On the contrary, we respectfully submit that the itemized list, which shows in detail the nature of the items as repairs, was evidence from which the conclusion follows that the repairs were necessary within the rule. If mistaked in this, then at least the evidence as furnished by the itemized statement was sufficient to raise an issue of fact thereasto which the trial court was bound to resolve and not simply reject as being in law no evidence whatever. If our first contention is correct, the judgment should be reversed and rendered for appellant. If incorrect in our first contention and correct in the second, then the case should be reversed and remanded so that the trial judge might consider the itemized statement as evidence upon the issue involved.
We refer now to the itemized list of repairs. We find such things as labor on starter, pressure plates, brake repairs, brake linings, bearings, rods, gaskets, bushings, plugs, and similar items. Certainly it is necessary, for example, to keep the brakes and steering gear in repair; in fact, it is a violation of law not to do so. It is common knowledge and understanding that the items of the character thus detailed are necessary, yet the trial judge shut his eyes to the obvious and declined to say, in the absence of expert testimony or stipulation on the subject, that repairs, for example, to the brakes and steering were or were not necessary repairs.
A common sense consideration of the itemized statement, in the light of common knowledge possessed by the inexpert and common run of automobile owners, demonstrates the point which we endeavor to make. This proposition was stated and acted upon by this court in the leading case of Broom Son v. S.D. Dale Sons, 109 Miss. 62, 67 So. 659, L.R.A. 1915D, 1146, on which we especially rely.
The Broom case, as in the case at bar, tried upon an agreed statement of facts. The records in that case did not even contain, as it does in the case at bar, an itemized statement of the repairs. The respective parties were in the same relative positions as here. The stipulation on which the Broom case was decided was simply that the mechanic's bill was "for materials furnished and repairs made to the automobile." There was nothing else. There was no expert testimony that the repairs were necessary. The court decided that a mechanic's lien was superior where the mechanical work was necessary to permit the operation of the vehicle. The question then presented was whether or not the mechanical work was necessary for this purpose, and the court held that the simple designation of the work as "repairs" was sufficient. In this connection, the court said: "From the agreed facts in the case we understand that the repairs were such as were necessary to preserve the automobile and keep it in proper condition for its use. Repair means to restore, renovate, or mend an article; to keep it in good or sound condition. Repairs, in the ordinary sense, are made to prevent deterioration in an article, and to keep it up in its value and preserve it for the use intended. It was clearly the intention of the parties that Mr. Polk, the mortgagor, should continue in the ordinary use of the automobile. While being so used it was necessary to keep it in a sufficient state of repair. This would be not only to the benefit of the user, Mr. Polk, but by preserving the value of the property was also for the benefit of appellees as mortgagees."
In the case at bar, the stipulation referred to the work done by appellant simply as "certain mechanical work", but the itemized statement clearly showed the work to have been repair work, and the circuit judge in his opinion characteried the work as such. Therefore, we submit, unless the Broom case has been or is to be overruled, the record in this case presents sufficient evidence of the necessity of the mechanical work in the form of repairs to come within the governing rule which gives priority to the mechanic's lien.
The Broom case has been consistently followed as correctly announcing the governing law in this state; in fact, it forms the very foundation of the rule. As late as the case of DeVan Motor Company v. Bailey, 177 Miss. 441, 171 So. 342, this court said: "We think this case is controlled in principal by the case of Broom Son v. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146 . . . We are of opinion that all subsequent cases have, in effect, reannounced the doctrine there established."
As to the Hollis case, the court in DeVan Motor Company v. Bailey, supra, said: "Appellant relies upon the case of Hollis Ray v. Isbell, 124 Miss. 799, 87 So. 273, 20 A.L.R. 244, for reversal of the case at bar. There are some statements in the opinion in that case, which, if read independently of the whole case, might well confuse as to the rule to be applied between a materialman and the holder of a prior vendor's lien."
It was also finally settled in DeVan Motor Company v. Bailey that knowledge on the part of mortgagee that repairs were being made and also that knowledge on the part of the repairmen of the existence of the mortgage were immaterial in the application of the rule governing priority. It follows in the case at bar that the lack of knowledge on the part of appellee that the truck was being repaired or had been repaired is entirely without effect one way or the other on the issue involved.
Running through the cases dealing with the subject under review, we find in most that the repairman takes the stand and swears generally that the repairs were necessary to permit the continued operation of the vehicle, to preserve the property, and to prevent deterioration. Such testimony comes forth as a matter of course. It is easy to produce and is rarely, if ever, contradicted. But since repairs short of a general major overhaul are always necessary to permit the efficient operation of any machinery and to preserve it and prevent deterioration, as recognized by this court in the Broom case, such testimony as found in some of the adjudicated cases seems to be cumulative and superfluous. We rely here upon the rule of common sense, as applied in the Broom case, and to deny its application here is, we submit, contrary to common knowledge and understanding.
Appellee relies primarily, if not entirely, upon Moorhead Motor Company v. H.D. Walker Auto Company, 133 Miss. 63, 97 So. 486, but this case is clearly distinguishable from the Broom case and from the case at bar.
In the Moorhead Motor Company case, the agreed statement contained an itemized statement characterized as "items sold the defendant . . . and placed on said automobile by claimant without charge for such service, and used by defendant on his automobile." Plaintiff contended that the claimant had no mechanic's lien whatever as to these items. The items consisted mainly of new tires, servicing such as greasing, washing, battery charging, and supplies, such as oil and grease. No mechanical work of any sort was involved and no repairs were involved. The court held simply that: "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."
Since the items involved in the Moorhead Motor Company case were obviously not repairs, we fail to perceive how this authority has any application to the case at bar. The claimant in that case did not even have a mechanic's lien, and would not have had such a lien even if the proof had shown without controversy that the items sold and placed on the cars were necessary to its operation. This is held and emphasized in the later case of Hardy v. Watkins, 150 Miss. 861, 117 So. 255, wherein it was held that new tires, even if necessary to preserve the property and permit its operation, were not within the coverage of the mechanic's lien. The same was said to be true of "other accessories purchased for use on the car."
Garth Cassedy, for appellee.
The appellant, in the argument of his brief on page 2, states, "It is a well established rule of law in this state that a mechanic's lien is superior to a mortgage or retained title where the subject is machinery and repairs are involved." This is only true in a case, "where the repairs were reasonably necessary to preserve the property and permits its ordinary operation, and prevent deterioration. Under these circumstances of necessity, authority of the owner to repair would be implied. This was the rule laid down in the Broom case; but no such necessity was shown in the Hollis case. . . . 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." Moorhead Motor Co. v. H.D. Walker Auto Co., 133 Miss. 63, 97 So. 486.
Through six and one-half pages of the appellant's brief, words conveying the implication like, "repair", "repairs", or "repairman", are used thirty-nine times. Although the agreed statement of facts is agreed "to be true, correct, and complete", words of this implication do not appear in it. The agreed statement of facts specifies and mentions only "certain mechanical work was done upon said truck which was labor and parts as itemized". Why does appellant use words of this implication? The case of J.A. Broom Son v. S.S. Dale Sons, 109 Miss. 62, 67 So. 659, L.R.A. 1915D, 1146, found certain admitted "repairs", by definition of the word, to have been necessary, but in that case the work was admitted to be repairs. In the Moorhead case, above cited, no such admission appeared, and it certainly does not in the case at bar.
In the Broom case, an agreed statement of facts admitted that the automobile therein involved had been repaired and that the parties therein were aware and fully advised "during such time as such repairs were being made and material furnished as aforesaid", and that no objection was ever made "to repairs being made . . . to the said automobile". The court there held, "Repair means to restore, renovate, or mend an article; to keep it in good or sound condition. Repairs, in the ordinary sense, are made to prevent deterioration in an article, and to keep it up in its value and preserve it for the use intended." The court in that case also stated, "Appellee not only knew and consented to the general use of the automobile by Mr. Polk, but also had knowledge that, in the course of his use of the property, he was having it repaired. Appellees, with this knowledge, made no objection to the repairs being made."
In the present case at bar, as in the Moorhead case previously cited, the mechanical work itemized is definitely not stated to be repair. In the Moorhead case, the question as to whether the work was repair was mentioned by the court in the following words: "There is another important point raised in the case, which we think, however, 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." Even though, as we have already mentioned, the itemized list in the Moorhead case included tire changes, tubes, battery charging, and oil, the court therein observed, "That the articles or alleged repairs named in the list which were furnishel and used upon the car were not shown to be reasonably necessary for the preservation and operation, and to prevent deterioration." In the case at bar, the agreed statement of facts specifies that the agreement is "true, correct, and complete" as therein stated. It also specifies only "certain mechanical work was done upon said truck which was labor and parts as itemized on the list attached." Wherever the mechanic's work and parts are referred to therein, it is named to be "the mechanical work which was done" or "this mechanical work".
In the agreed statement of facts as to the defendant's claim (the appellee here), this statement appears, "The defendant contends that the plaintiff is not entitled to any lien whatever, superior or paramount, to defendant's lien for the purchase money as evidenced by the retention of title contract for any of the items listed as composing the mechanical work done." The appellant argued in his brief (page 3) now before the court, that, "the question here is whether the itemized list of repairs admittedly made to the truck comes within the rule, there being no affirmative expert testimony as to the necessity thereof or affirmative statement to characterize the same as being either necessary or unnecessary." This is a complete admission by appellant. Since the appellant, as plaintiff below, was required to meet the burden of proof by a preponderance of the evidence, his case, as admitted by this in his brief, was not made out.
We believe the appellant in his brief to have confused three separate questions by fusing them into one. Separated, the three questions are these:
1. What mechanical parts were placed upon the truck?
2. Were these parts replacements or additions to the truck? And
3. Was it necessary to make each or all of these additions or changes?
The third question is the most important. The answer to the first, of what parts were added or changed is, of course, the itemized list in the agreed statement of facts herein, but answers to the second and third questions are as absent from this record as they were from the Moorhead case. The agreed statement of act here and in the Moorhead case do not mention whether the mechanical parts were changes of similar parts on the truck or additions to the truck.
The appellant argues, on page 3 of his brief herein, that the itemized list, itself, was evidence that the mechanical work was necessary, and that the itemized list was sufficient to raise an issue of fact. Appellant tries to help this wishful conclusion by stating that since labor was done on, for example, the brakes and steering gear, it must have been necessary. If the appellant's argument that an itemized list of mechanical parts which are vital to the workings of an automobile is evidence that these parts needed to be repaired or replaced, then a mechanic would be at liberty to replace a whole automobile's engine without even having to claim the replacement to be necessary. The parts itemized or listed might very likely be parts without which a car or truck could not be stopped, started, steered, or driven, but, apparently, the truck in question had all of these parts because the parties agree in the agreed statement of facts that the truck was driven to the shop. Certainly, in this type of case, the mechanic or appellant here should at lease be required to have one affirmative statement from himself or some other person that the mechanical parts which he changed or added were necessary to be changed or added. Did the truck need a new starter? Did it need a new steering wheel assembly? Did it need a new brake assembly? None of these questions are answered. We only know the truck was driven into the shop, although returned from the shop by some means unsaid.
The appellee respectfully submits that the Moorhead case is identical in all material facts with the presnt case now before the court. The Moorhead case, as well as the case at bar, was submitted to the court upon an agreed statement of facts which contained no statement of whether the mechanical work was necessary or not. The itemized list of alleged repairs in the Moorhead case included a charging of a battery. It included tire changes. The appellant here could argue that the car in the Moorhead case could not have operated at all without a charged battery, tires, oil, or grease therein itemized, but the court in its opinion in the Moorhead case stated, "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."
Upon this, the holding of the trial court below is well founded, as shown here by the record. There has been no agreement, admission, proof or contention throughout the present case that the said mechanical work was necessary to preserve the property.
The appellant relies through his brief upon the word repairs in the Broom case which does not exist in the Moorhead case or the case at bar.
"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. Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; U.S. Motor Truck Co. v. Southern Securities Co., 131 Miss. 644, 95 So. 639."
From this decision, and on those others cited by the appellant, the whole question of priority between the mechanic and the owner is clearly dependent upon whether the mechanical work was necessary. The general rule which requires the plaintiff to meet the burden of proof by a preponderance of the evidence was applied by the trial court in this case. The plaintiff, who is appellant here, was found by the trial court not to have sufficiently established the necessity of this mechanical work.
Pennington, as security for the unpaid purchase price, retained the title to a Chevrolet truck sold and delivered by him to T.J. Flemmings under a conditional sales contract. Funchess, doing business as Wesson Motor Company, claims he furnished labor and materials in the repair of the truck under such circumstances as vested in him a lien upon the truck superior to the claim of Pennington. The question was submitted to the trial judge under an agreed statement of facts, waiving a jury. The judge decided in favor of Pennington, and Funchess appeals. The correctness of that holding is the question for decision on this appeal.
(Hn 1) The problem reduces itself to the inquiry whether appellant, by the stipulation and exhibit thereto, there being no other testimony, has shown that he had a lien upon the truck, and, if so, the amount secured thereby, and whether the labor and materials furnished by him, constituting the bases of his lien, were reasonably necessary to preserve the truck, enable it to operate in the ordinary way and prevent deterioration. The cases impose that burden upon one claiming such a lien as against one holding title as security for the unpaid purchase price. Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146; Moorhead Motor Company v. H.D. Walker Auto Company, 133 Miss. 63, 97 So. 486; Wingate v. Mississippi Securities Company, 152 Miss. 852, 120 So. 175; Devan Motor Company v. Bailey, 177 Miss. 441, 171 So. 342; General Motors Acceptance Corporation v. Shoemake, 192 Miss. 446, 6 So.2d 309. The trial judge found that the stipulation and exhibit did not meet that burden. Can we say his conclusion is clearly wrong?
(Hn 2) It is necessary that it be shown that the labor and materials constitute repairs to the truck, as distinguished from "articles purchased for an automobile", or fuel to enable it to operate. Moorhead Motor Company v. H.D. Walker Auto Company. supra. The stipulation studiously avoids using the word "repairs." It says "certain mechanical work was one upon said truck which was labor and parts as itemized on the list attached hereto"; therefore, what items on the list constituted, or did not constitute, repairs, and the value thereof, had to be gleaned from the itemized list by the trial judge, and must be so gleaned by us. The list contains fifty-eight items, of which seven are designated labor. In the fifty-one remaining items are articles described as "Pressure plate"; "disc"; "Cone"; "cage"; "Tie-in"; "lock" "5 qrs. oil"; and others of uncertain character and identity to the ordinary person, followed by the amount charged therefor. The total charge for the seven items of labor aggregated $153.15. Some of these are simply described as "labor"; in others the word labor is followed by such designation as "ring job". It is evident, we think, that the trial judge could not, with any degree of certainty, cull out from this list of items, without the aid of any other proof, those constituting repairs to the truck, and determine therefrom the extent of the labor involved in making such repairs, and the total value of such rpeair articles and labor so as to give judgment for any certain amount.
If the labor and materials constitute repairs, then the lienor must show "the repairs were reasonably necessary to preserve the property and permit its ordinary operation, and prevent deterioration." Were these repairs, and the labor to make them, assuming they constituted repairs, limited to these objects, or did they go beyond such objects, and, if so, how much? The owner "drove" the truck to the mechanic the next day after he bought it from Pennington. It had not depreciated any from his use of it. The total mechanic's bill was $243.10. Was it necessary to expend that sum to "keep the car in reasonable repair, so that it could operate and move in the ordinary way"; Wingate v. Mississippi Securities Company, supra [ 152 Miss. 852, 120 So. 176], or was Flemmings, the purchaser, trying to have his truck made practically new? Was it necessary to expend that amount to "keep the car in reasonable repair"? Maybe so, but how was the trial judge to know that was a fact from a mere inspection of fifty-eight items? The stipulation did not state this expenditure was necessary to keep the truck in reasonable repair and enable it to operate in the ordinary way. If these were the facts, the mechanic could have made the proof rather than place the burden on the judge to try to deduce them from a list of articles and labor supplied for the truck.
Appellant says the Broom case, supra, controls. The stipulation therein said the labor and materials furnished in that case constituted "repairs", within the meaning of the statute, to the automobile. Furthermore, the opinion emphasizes that the title holder knew the repairs were being made and offered no objection thereto, and the later cases also stress that fact in discussing the Broom case, although recognizing that the lack of knowledge on the part of the title holder does not prevent the claim of the lienholder from being superior if the other essential elements are present. Here, Pennington had no knowledge that Funchess was working upon or supplying any articles for the truck.
We think that the Moorhead Motor Company case, supra, is nearer in point. There, as here, was a stipulation, and a list of the furnished articles and the labor done. The Court said [ 133 Miss. 63, 97 So. 487]: "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". The list exhibited, 133 Miss., at page 71, 97 So. at page 487 of the report of the Moorhead case was not the complete list exhibited in that case. If it be said the items appearing in the report of the case did not by their nature, vest in the mechanic a lien upon the car, an examination of the original list in the record of the case contains other articles additional to those in the report which additional articles, by their nature, clearly appear to confer on the mechanic a lien therefor, as, for instance, tightening the steering wheel, furnishing gaskets and spark plugs, adjusting and repairing breaks, cleaning spark plugs, etc.
We cannot say the learned trial judge was in error in failing to deduce as facts from the stipulation and itemized list in this case all of the elements necessary to adjudge the lien of the mechanic superior to that of the security title holder.
Affirmed.