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A. G. GRABEN MOTOR COMPANY

V.
BROWN GARAGE COMPANY, Appt.

lowa Supreme Court - November 20, 1923,

(- Iowa, 195 N. W. 752.) Lien for storage of automobile.

1. A garage keeper has no lien for the mere storage of an automobile at the request of the mortgagor, as against the claim of the holder of a recorded purchase-money mortgage.

[See note on this question beginning on page 834.] Mortgage - right of mortgagor in Appeal rejection of evidence possession.

nonprejudicial error. 2. Permitting a mortgagor of an au- 4. Refusal of the court, in an action tomobile to retain possession of it con- by the holder of a purchase-money fers no implied authority to bind the mortgage to replevy an automobile, to mortgagee by a contract for its stor- permit the reading of the petition in age.

evidence for the purpose of emphasizEstoppel — permitting mortgagor to ing the discrepancy between its allestore property.

gations and the testimony of a witness 3. A mortgagee of an automobile is as to the value of the machine, is not not estopped to assert his rights prejudicial error, where the value of against an alleged lien for storage, by the car, added to the damages alfailure promptly to recover possession lowed, was substantially equivalent to of the property upon receiving notice the balance due on the purchase price. that the vehicle had been placed in storage.

APPEAL by defendant from a judgment of the Municipal Court of Des Moines (Franklin, J.) in favor of plaintiff in an action brought to recover possession of an automobile. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Theodore Mantz and John right to the possession of the auE. Holmes for appellant.

tomobile upon its purchase-money Messrs. R. R. Nesbitt and P. W.

mortgage, which had been breached Walters for appellee.

by Miller; appellant defended upon Stevens, J., delivered the opinion the theory that it has a common-law of the court:

lien, which is superior to the mortAppellee, a corporation, brings gage lien of appellee. The court this action in replevin to recover the

withdrew this issue from the jury, possession of an automobile from and submitted to it only the questhe defendant, a corporation en

tions of demand and damages. gaged in the business of keeping a Appellant relies wholly upon a garage. The automobile was pur

common-law lien. The business of chased by one Miller from appellee, a garage keeper is, in some respects, and a purchase-money mortage giv- similar to that of a livery-stable en to secure the unpaid portion of keeper, in which carriages are kept the purchase price. On or about for hire. No lien existed at comOctober 1, 1921, Miller placed the mon law in favor of livery-stable car in appellant's garage for stor- keepers. McDonald & Co. v. Benage at the agreed price of $10 per nett, 45 Iowa, 456; Smith v. O'Brien, month. It remained in storage un- 46 Misc. 325, 94 N. Y. Supp. 673; til this action was commenced in Nance v. 0. K. Houck Piano Co. 128 August, 1922. Appellee based its Tenn. 1, 155 S. W. 1172. Ann. Cas.

is

(- Iowa, 195 N. W. 752.) 1914D, 834; McGhee v. Edwards, 87 the statute relating to and governing Tenn. 506, 3 L.R.A. 654, 11 S. W. the business of warehousemen. 316. So far, however, as the deci- II. It is also argued by appellant sions in other jurisdictions have that appellee, by its conduct, waived been brought to our attention, stat- its lien in favor of appellant and is utes creating a lien in favor of now estopped to assert same. This livery-stable keepers have been con- claim is based upon the permission strued as having no application to granted Miller, the purchaser of the garage keepers. Smith v. O'Brien,

Smith v. O'Brien, automobile, to retain possession 46 Misc. 325, 94 N. Y. Supp. 673; thereof, and actual notice that the Lloyd v. Kilpatrick, 71 Misc. 19, 127 automobile was being held by appelN. Y. Supp. 1096; Automobile & lant as security for storage charges Supply Co. v. Hands, 28 Ont. L. Rep. under the good-faith belief that it 585, 13 D. L. R. 222; Webster v. had a common-law lien therefor. Black, 24 Manitoba L. R. 456, 28 Implied authority on the part of MilWest. L. R. 300, 17 D. L. R. 15; ler to contract for storage is also asHartney v. Boultney, 27 West. L. R. serted by appellant. Meré reten613, 7 Sask. L. R. 97, 6 West. Week. tion of possession by the mortgagor Rep. 260, 16 D. L. R. 521.

of a mortgaged chattel confers no Section 3137 of the Code makes implied authority upon such mortthe lien of livery-stable keepers sub- gagor to bind the

Mortgage-right ject to prior liens of record, so that, mortgagee for con- of mortgagor in if the court were to hold that this tracts of this char

possession. statute is applicable to garage acter, nor is an estoppel created by keepers, it would not avail appellant, the failure of the mortgagee, with as the mortgage in question was re- notice of an ar

Estoppelcorded prior to October 1, 1921. rangement such as

permitting Appellant argues that the case comes shown in this mortgagor to

store property. within the rule of the common law, case, to terminate which permitted a lien for repairs

the same by paying charges for upon personal property. Liens for

which such mortgagee is not liable, repairs were allowed at common law

and to promptly recover possession upon the theory that an additional

of the property. Beh v. Moore, 124 value was imported thereto. Pres

Iowa, 564, 100 N. W. 502; Whitlock ervation of automobiles by storage

Mach. Co. v. Holway, 92 Me. 414, 42

Atl. 799; Adler v. Godfrey, 153 Wis. is quite different from value added

186, 140 N. W. 1115. by the skill of the artisan in making The record disclosed that a reprerepairs thereon. Liens existed at

sentative of appellee demanded poscommon law in favor of innkeepers, session of the automobile in March, farriers, common carriers, and

1922, and that appellant refused to warehousemen, who were bound by permit it to be removed without law to serve the public in these oc- the payment of the storage charges cupations. Appellant does not claim then due. This was the only condia lien as a warehouseman, which is tion upon which appellant is shown now regulated by statute, but relies to have consented to yield possesentirely upon an assumed common- sion of the automobile to appellant. law lien. None of the liens allowed We shall not review the authorities

at common law exist cited by appellant and relied upon bien-for storage in favor of appel- to sustain its contention that Miller of automobile.

lant, and the legis. had implied authority to bind appellature of this state has not seen fit lee for the storage charges. The to enact legislation specifically doctrine of these cases has no applicreating a lien for storage or hire in cation to the facts of this case. favor of a garage keeper. If any Other questions are argued by exists in this state, it is created by counsel, but, in view of the conclu$ 3137 or some of the provisions of sion already reached herein, they are of minor importance. The court in the petition. This could have refused to permit counsel for appel- little significance in the mind of lant to read appellee's petition to jurors in passing upon this question. the jury. The only possible pur- The court also refused to permit pose of counsel in desiring to read witness for appellant to give testithe petition to the jury was to em- mony as to a conversation over the phasize the discrepancy between the telephone, overheard by him, beallegation therein as to the value of tween Miller and someone in the ofthe automobile and the testimony office of appellee. If the ruling comGraben upon the trial. The ruling plained of was erroneous, it was of the court was manifestly without without substantial prejudice. If prejudice. The value of the auto- the conversation could be said to

31 A.L.R.-53.

mobile, added to the bear at all upon the issue of waiver Appeal-rejection of evidence damages allowed by or estoppel, it was too remote to be -nonprejudicial the jury, was sub- of any probable probative value.

stantially equivalent We find no reversible error in the to the balance due on the purchase record, and the judgment of the price of the automobile. The evi

court below is therefore affirmed. dence on the issue of value was conflicting, but Graben as a witness for

Preston, Ch. J., and Evans and appellee estimated the value at con

De Graff, JJ., concur. siderably less than the value stated Petition for rehearing denied.

error.

ANNOTATION.

Lien for storage of automobile. I. At common law, 834.

III. Under statutes giving lien: II. Applicability to garage keepers of

a. In general, 836. statutes giving liens to livery-stable

b. Waiver, 836.

c. Priority, 837. keepers, warehousemen, and repair

d. Assignment, 838. men, 835.

IV. Miscellaneous, 839.

I. At common law.

In Crosby v. Hill (1922) 121 Me. It is indispensable to the existence

432, 117 Atl. 585, the court decided of a common-law lien that the party

that a garage man had no common-law claiming it should have an independ- lien for storage, where, after the coment and exclusive possession of the pletion of the repairs on the automoproperty. 17 R. C. L. 601.

bile by the garage man, the party reIn the absence of statute, it seems

questing the repairs consented that that a garage man who stores the car

the car should remain in the garage, of a customer under an arrangement

and promised that he would pay the whereby the latter is allowed to take garage man reasonable storage thereit out of the garage and use it when

on until such time as he would be ever he desires is not entitled, under able to pay the repairs thereon, since the common law, to a lien for storage the rights of the parties were govcharges, and to hold the machine un- erned by this special contract. til such charges are satisfied. See the It was held in Saxton v. Gemehl reported case (A. G. GRABEN MOTOR (1919) 72 Pa. Super. Ct. 177, that a Co. v. BROWN GARAGE Co. ante, 832). garage keeper who carried on a reg

A garage keeper is not entitled to a ular business of receiving, storing, lien on an automobile for keeping and and repairing of automobiles, which caring for it in his garage, nor for the owners were desirous of selling, supplies such as gasolene and oil fur- cars so left with the garage man being nished to the owner while the machine in his independent and exclusive poswas being kept in the garage. Rehm session, was entitled to a lien upon a v. Viall (1914) 185 Ill. App. 425. car so stored in the amount of the charges for storage. The court rested the purchase-money mortgage on the its decision on the ground that the automobile, who allowed the condicontracting parties in the instant case tional vendee to retain possession of stood in the relation of depositor and the automobile, did not waive his lien warehouseman, and, as by the earlier in favor of the garage man by allowPennsylvania decisions it was held ing the automobile to remain in the that a warehouseman had a specific garage after having actual notice that lien upon the goods received by him the conditional vendee had placed it for the price chargeable for the stor- there and that the garage man was age thereof, the garage man in the holding it as security for his storage instant case was entitled to a lien on charges, and the conditional vendee the car for storage charges.

had no implied power to bind the mortAnd in Malcolm v. Sims-Thompson gagee for contracts of this character. Motor Car Co. (1914) Tex. Civ. In Fishback v. Foster (1922) 23 App. — 164 S. W. 924, the court held Ariz. 206, 202 Pac. 806, it was held that that as at common law a warehouse- a statute giving a lien to a person who man had a specific lien on property has repaired any vehicles did not give stored with him, and as, in the state a garage keeper a lien for storage statute relating to liens, it is provided charges on an automobile; neither was "that nothing in said chapter shall the garage keeper entitled to a lien unimpair or affect, among other things, der a statute giving to "proprietors liens arising at common law or in of livery or public stables equity," a garage man is entitled, both a special lien on all animals placed by common law and equity, to a lien with them for feed, care, and attenupon an automobile to secure the stor- tion, ... also upon such carriages, age charges, and the court has au- buggies, vehicles, or other equipments, thority to forclose such a lien.

as may have been placed in their care, A garage keeper has no statutory for the amount of the charges against lien for storage charges, and, in the the same,” as the section quoted canabsence of contract such as would en- not be extended to include a lien on title him to a lien at common law, he automobiles for storage charges, as had no such lien. White v. Texas statutory liens cannot be extended by Motor-car & Supply Co. (1918) Tex. . the courts to apply to cases not proCiv. App. 203 S. W. 441. It will be vided for by the statute. In regard observed that the reported case A. to the statute above quoted, the court G. GRABEN MOTOR CO. v. BROWN GA. was of the opinion that, although the RAGE Co. ante, 832) in effect denies the term “vehicle” used therein had been power of the mortgagor in possession held to apply to automobiles, and to create a contractual lien for stor- properly so, “to hold that the term age as against the holder of a pur- “livery-stable keepers' includes garage chase-money mortgage which is duly men would be contrary to the fact, and recorded.

constitute judicial legislation, pure

and simple. 11. Applicability to garage keepers of

He (garage man] statutes giving liens to livery-stable

must look to the legislature if he dekeepers, warehousemen, and repair

sires a statutory lien covering his

charges for storage, because [ 3672 In the reported case (A. G. GRABEN [statute above quoted] was enacted MOTOR Co. v. BROWN GARAGE Co. ante, solely for the benefit of the livery832) the court held that a garage man, and the fact that he has been in keeper was not entitled to a lien for large measure supplanted by the storage at common law, and, although garage man would not justify the the business of a garage keeper is court in substituting the latter term somewhat similar to that of a livery- for the words 'proprietors of livery or stable keeper, a statute creating a lien public stables,' as they are used in 1 in favor of livery-stable keepers is not 3672, or in reading it into this secapplicable to garage keepers. The tion

when it was not placed court further held that the holder of there by the legislature. From the

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horse-drawn carriage to the motor- livery stable or boarding stable for driven car is a tremendous step for- his reasonable charges for boarding ward in the evolution of transporta- and caring for such horse, animal, or tion, and the conditions resulting from carriage," did not apply to garage such progress necessarily produce new keepers. The court says: "It is true problems demanding new legislation, that an automobile may be described but it is the duty of the lawmaking, as a carriage; but the whole context and not of the judicial, branch of the shows that the legislature was speakgovernment to supply it." In the in- ing with reference to livery stables, stant case the court was of the opin- where horses are ordinarily kept." ion that, as the car was left in the

III. Under statutes giving lien. garage strictly for the purpose of storage, and was not taken out or used,

a. In general. the indication was that there was no The constitutionality of a law givagreement expressed or implied that

ing a lien to "a person keeping a the owner might have the use of it

garage,

and who in connection when he desired, therefore, according therewith stores, maintains, keeps, or to the court, the garage man was en

repairs any motor vehicle or furnishes titled to a lien at common law in the

gasolene or other supplies therefor at nature of a warehouseman's lien, but

the request or with the consent of the under such a lien the garage man owner," was upheld in Dininny v. would have only the right to retain

Reabis (1917) 100 Misc. 316, 165 N. possession of the car as security for Y. Supp. 97, affirmed in (1917) 178 the debt, and would not have the right App. Div. 922, 165 N. Y. Supp. 97, as to sell the car in satisfaction of the

the statute declares that due notice be debt. However, the court was of the given to the owner of the property, opinion that the parties could, by and that the amount of the lien is the agreement or contract, have consented

sum due from the owner, not the sum to a sale of the car in case storage was claimed by the garage keeper, who not paid.

proceeds at his peril, and, if he claims A keeper of a garage has no lien for

more than is actually due, is guilty of storage as a warehouseman on an au- conversion and liable to the owner in tomobile kept at a garage as the au- damages. tomobile was not "stored" within the meaning of the Lien Law, being con

b. Waiver. tinuously or occasionally upon the road at the owner's pleasure. Smith

In Morfa v. Rhodes (1919) 213 Ill. V. O'Brien (1905) 46 Misc. 325, App. 354 (opinion filed March 12, 1919, 94 N. Y. Supp. 673, judgment affirmed

rehearing denied March 25, 1919), in (1905) 103 App. Div. 596, 92 N. Y. under a statute giving garage keepers Supp. 1146. “The right so to use it a lien upon any motor vehicle kept by destroyed the possession, and demon- them, for the proper charges due for strated that the credit was given to

the keeping thereof, as well as a lien the owner, and not the goods."

for repairs thereon, the court decided In 1908 a statute was passed in New

that where the garage keeper acquired York giving a lien to garage men for

a lien for storage, and voluntarily alstorage and supplies. At common law

lowed the automobile to be taken from garage men had no such lien, unless his possession, he could not thereaftunder circumstances creating a ware- er replevy the automobile in order to houseman's lien.

maintain his lien. The court reIt was held in Automobile & Supply marked: “Inasmuch as it is provided Co. v. Hands (1913) 28 Ont. L. Rep. in § 3a that garage keepers shall have 585, 13 D. L. R. 222, that a statute pro- a lien upon any motor vehicle 'kept by viding that "every keeper of a livery them' for the proper charges due for stable or a boarding stable shall have the keeping thereof, it seems difficult to a lien on every horse or other animal conclude that the legislature intended boarded at or carriage left in such that a party out of possession through

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