[Vol. 22 (N.S)

Newark Gas Co. v. Newark.

As to the fourth defense, if the company had its lines in the city it could do nothing else than to deliver gas upon the rate fixed by council and the acceptance of the franchise would not bar them from bringing an action to show that it was, in fact, confiscatory.

Therefore, my conclusion rests upon two grounds,

First That this court has not jurisdiction to modify the decree and finding of the court of appeals, and,

Second: That the plaintiff has not established that the rate of 18 cents was confiscatory without dividing it up into parts. And, therefore, a finding may be so made.

1919.]

Security Co. v. Coffman et al.

PRIORITY AS BETWEEN LIENS.

Common Pleas Court of Montgomery County.

THE BANKERS COMMERCIAL SECURITYY COMPANY V. 3. K. COFFMAN, W. T. STRICKLER AND THE GRAMM-BERNSTEIN MOTOR COMPANY.

Decided, October 17, 1919.

Lien for Repairs—Prior to that of a Chattel Mortgage-Corporation as a Lienholder has Same Rights as an Individual.

A lien for labor and materials expended in the repair of a machine is superior to the lien of a chattel mortgage, but the priority of such a lien does not extend to such items as storage and the cost of material used in the operation of the machine.

SNEDIKER, J.

This action was brought by the plaintiff corporation for the recovery of $1,566.60, with interest, on seven promissory notes made by the defendant, S. K. Coffman, payable to W. T. Strickler, and endorsed by the payee to this plaintiff. To secure these notes there was given to Strickler a chattel mortgage upon one Model 5, six-ton Gramm-Bernstein truck, 1917 model. The mortgage and notes bore date of June 18, 1917. The mortgage was filed on that day at the office of the recorder of Montgomery county, Ohio. Subsequent to the delivery of the truck to Coffman, and after the giving of the notes and mortgage referred to, and on or about June 17, 1918, this truck was brought to Lima, Ohio, and delivered to the factory of the defendant, the GrammBernstein Motor Truck Company. Thereupon this company, without knowledge of the plaintiff's mortgage lien, did certain work and furnished materials, labor and new parts for and upon the truck, repairing and overhauling it and putting it in good condition in accordance with orders and instructions received at the time the truck was so delivered. The total

Security Co. v. Coffman et al.

[Vol. 22 (N.S.)

amount of the labor, parts and material done and furnished was of the value of $530.20. The work was completed and the truck ready for redelivery on June 28th, 1918. Neither Coffman nor Strickler, when notified of this fact, removed the truck, and it remained in the possession of this defendant corporation until the plaintiff, on August 25th, 1919, secured a judgment in this court for the amount of its claim, an order of foreclosure and sale, and it was sold under the order of sale so issued by the court. A return of that order of sale shows that the truck was appraised for $1,800, and sold for $1,860, plus the costs made on the sale. The fund so realized. from the sale is now in the hands of the clerk of this court for distribution.

We are called upon to determine as to the priorities of the respective parties plaintiff and defendants, the one by reason of its judgment on account of the chattel mortgage, the other by reason of its lien for work, labor and materials furnished in the repair of the truck.

Counsel for these parties have submitted an agreed statement of facts in which all of the matters and things heretofore recited are agreed to be true.

The lien claimed by the Gramm-Bernstein Motor Truck Company is one which has long been recognized at common law, and, in some of the states, has been made the subject of legislation. In our own state it has not. The fact that this company is a corporation does not to our mind make any difference as to its right to such a lien. It is, of course, true that at the time that this lien was first recognized, corporations for business purposes had not come into existence, and that originally the right to the lien must have been accorded only to individuals and to companies composed of individuals. But when a corporation is formed it possesses an individuality of its own. It has an entity, and is entitled under the law, unless excluded specifically, to all the rights in business transactions which are possessed by a sole person conducting a like business.

The first consideration in the determination of the question

1919.]

Security Co. v. Coffman et al.

before us suggests the question as to where the title to this truck was after the giving of the mortgage by the purchaser. Under the law of Ohio, which differs from some of the other states, the interest of a mortgagee under a chattel mortgage is that of a general owner of the property mortgaged. 26 0. S., page 659. As such general owner the title to the truck was in the mortgagee. If the title to the truck was in the mortgagee, had Coffman and Strickler, by their possession of it and by their delivery of it to the defendant corporation for repairs, such a relation to the truck as would give this defendant corporation, having made the repairs and having retained possession of the truck after such repairs, a right to a lien on account thereof, which was superior to prior existing liens on the property?

Generally stated, the rule is:

"A mechanic at common law has a lien on all personal property for repairs (persons having by common law the right to retain goods on which they have bestowed labor, until the reasonable charges therefor are paid. 2 Kent's Commentaries, 635). In the absence of specific agreement, if a party has bestowed labor and skill on a chattel bailed to him for such purpose, and thereby improved it, he has by general law a lien on it for the reasonable value of his labor or the right to retain it until paid for such skill and labor."

In the case of Hammond v. Danielson and another, 126 Mass., page 294, the Supreme Court say:

"A lien on personal property can not, indeed, be created without authority of the owner. But in the present case such an authority must be implied from the facts agreed. The subject of the mortgage is a hack, that is to say, a carriage let for hire; described in the mortgage as 'now in use' at certain stables; and which, as the parties have agreed in the case stated, the mortgagor retained possession of and used agreeable to the terms of the mortgage. It was the manifest intention of the parties that the hack should continue to be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the mortgagor also, by preserving the value of the security and

Security Co. v. Coffman et al.

[Vol. 22 (N.S.)

affording a means of earning wherewithal to pay off the mortgage debt. The case is analogous to those in which courts of common law, as well as of admiralty, have held, upon general principles, independently of any provisions of statute, that liens for repairs made by mechanics upon vessels in their possession take precedence to prior mortgages."

In the case at bar there is no agreement that the phrase "now in use," or any similar phrase, is contained in the mortgage, but it does appear from the pleadings, the allegations of which are admitted to be true, that in the case before us, the truck was in the lawful possession of those defendants who left it with the Gramm-Bernstein Motor Truck Company for repairs. The same state of facts existed in the case of Broom & Sons v. Dale & Sons, 67 Southern Reporter, 660, where the Supreme Court of Mississippi say:

"In this case the automobile was intrusted by the party who had the lawful possession of it to the appellants to be repaired. By virtue of the labor done by appellants and the material used by them in making the repairs, they had the right under the common law, as well as under the statute (of Mississippi) to retain possession thereon until they were paid their charges."

This case was one where the vendor sold the machine, transferred the possession, but reserved the title to secure payment, which would place him in the same position with reference to the general ownership of the property as this plaintiff occupies under the law of Ohio. Further discussing this case the Supreme Court of Mississippi say:

"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.