charges for storage. The court rested its decision on the ground that the contracting parties in the instant case stood in the relation of depositor and warehouseman, and, as by the earlier Pennsylvania decisions it was held that a warehouseman had a specific lien upon the goods received by him for the price chargeable for the storage thereof, the garage man in the instant case was entitled to a lien on the car for storage charges.

And in Malcolm v. Sims-Thompson Motor Car Co. (1914) Tex. Civ. App. —, 164 S. W. 924, the court held that as at common law a warehouseman had a specific lien on property stored with him, and as, in the state statute relating to liens, it is provided "that nothing in said chapter shall impair or affect, among other things, liens arising at common law or in equity," a garage man is entitled, both by common law and equity, to a lien upon an automobile to secure the storage charges, and the court has authority to forclose such a lien.

A garage keeper has no statutory lien for storage charges, and, in the absence of contract such as would entitle him to a lien at common law, he had no such lien. White v. Texas Motor-car & Supply Co. (1918) - Tex. Civ. App. 203 S. W. 441. It will be observed that the reported case A. G. GRABEN MOTOR Co. v. BROWN GARAGE CO. ante, 832) in effect denies the power of the mortgagor in possession to create a contractual lien for storage as against the holder of a purchase-money mortgage which is duly recorded.

II. Applicability to garage keepers of statutes giving liens to livery-stable keepers, warehousemen, and repair

men.

In the reported case (A. G. GRABEN MOTOR CO. v. BROWN GARAGE Co. ante, 832) the court held that a garage keeper was not entitled to a lien for storage at common law, and, although the business of a garage keeper is somewhat similar to that of a liverystable keeper, a statute creating a lien in favor of livery-stable keepers is not applicable to garage keepers. The court further held that the holder of

the purchase-money mortgage on the automobile, who allowed the conditional vendee to retain possession of the automobile, did not waive his lien in favor of the garage man by allowing the automobile to remain in the garage after having actual notice that the conditional vendee had placed it there and that the garage man was holding it as security for his storage charges, and the conditional vendee had no implied power to bind the mortgagee for contracts of this character.

In Fishback v. Foster (1922) 23 Ariz. 206, 202 Pac. 806, it was held that a statute giving a lien to a person who has repaired any vehicles did not give a garage keeper a lien for storage charges on an automobile; neither was the garage keeper entitled to a lien under a statute giving to "proprietors of livery or public stables

a special lien on all animals placed with them for feed, care, and attention, . . . also upon such carriages, buggies, vehicles, or other equipments, as may have been placed in their care, for the amount of the charges against the same," as the section quoted cannot be extended to include a lien on automobiles for storage charges, as statutory liens cannot be extended by the courts to apply to cases not provided for by the statute. In regard to the statute above quoted, the court was of the opinion that, although the term "vehicle" used therein had been held to apply to automobiles, and properly so, "to hold that the term 'livery-stable keepers' includes garage men would be contrary to the fact, and constitute judicial legislation, pure and simple. . . . He [garage man] must look to the legislature if he desires a statutory lien covering his charges for storage, because ¶ 3672 [statute above quoted] was enacted solely for the benefit of the liveryman, and the fact that he has been in large measure supplanted by the garage man would not justify the court in substituting the latter term for the words 'proprietors of livery or public stables,' as they are used in ¶ 3672, or in reading it into this section. when it was not placed there by the legislature. From the

horse-drawn carriage to the motordriven car is a tremendous step forward in the evolution of transportation, and the conditions resulting from such progress necessarily produce new problems demanding new legislation, but it is the duty of the lawmaking, and not of the judicial, branch of the government to supply it." In the instant case the court was of the opinion that, as the car was left in the garage strictly for the purpose of storage, and was not taken out or used, the indication was that there was no agreement expressed or implied that the owner might have the use of it when he desired, therefore, according to the court, the garage man was entitled to a lien at common law in the nature of a warehouseman's lien, but under such a lien the garage man would have only the right to retain possession of the car as security for the debt, and would not have the right to sell the car in satisfaction of the debt. However, the court was of the opinion that the parties could, by agreement or contract, have consented to a sale of the car in case storage was not paid.

A keeper of a garage has no lien for storage as a warehouseman on an automobile kept at a garage as the automobile was not "stored" within the meaning of the Lien Law, being continuously or occasionally upon the road at the owner's pleasure. Smith V. O'Brien (1905) 46 Misc. 325, 94 N. Y. Supp. 673, judgment affirmed in (1905) 103 App. Div. 596, 92 N. Y. Supp. 1146. "The right so to use it destroyed the possession, and demonstrated that the credit was given to the owner, and not the goods."

In 1908 a statute was passed in New York giving a lien to garage men for storage and supplies. At common law garage men had no such lien, unless under circumstances creating a warehouseman's lien.

It was held in Automobile & Supply Co. v. Hands (1913) 28 Ont. L. Rep. 585, 13 D. L. R. 222, that a statute providing that "every keeper of a livery stable or a boarding stable shall have a lien on every horse or other animal boarded at or carriage left in such

livery stable or boarding stable for his reasonable charges for boarding and caring for such horse, animal, or carriage," did not apply to garage keepers. The court says: "It is true that an automobile may be described as a carriage; but the whole context shows that the legislature was speaking with reference to livery stables, where horses are ordinarily kept."

III. Under statutes giving lien.

a. In general.

The constitutionality of a law giv ing a lien to "a person keeping a garage, and who in connection therewith stores, maintains, keeps, or repairs any motor vehicle or furnishes gasolene or other supplies therefor at the request or with the consent of the owner," was upheld in Dininny v. Reabis (1917) 100 Misc. 316, 165 N. Y. Supp. 97, affirmed in (1917) 178 App. Div. 922, 165 N. Y. Supp. 97, as the statute declares that due notice be given to the owner of the property, and that the amount of the lien is the sum due from the owner, not the sum claimed by the garage keeper, who proceeds at his peril, and, if he claims. more than is actually due, is guilty of conversion and liable to the owner in damages.

b. Waiver.

In Morfa v. Rhodes (1919) 213 III. App. 354 (opinion filed March 12, 1919, rehearing denied March 25, 1919), under a statute giving garage keepers a lien upon any motor vehicle kept by them, for the proper charges due for the keeping thereof, as well as a lien for repairs thereon, the court decided that where the garage keeper acquired a lien for storage, and voluntarily allowed the automobile to be taken from his possession, he could not thereafter replevy the automobile in order to maintain his lien. The court remarked: "Inasmuch as it is provided in § 3a that garage keepers shall have a lien upon any motor vehicle 'kept by them' for the proper charges due for the keeping thereof, it seems difficult to conclude that the legislature intended that a party out of possession through

his own voluntary act, as in the instant case, may bring replevin. The words, 'any garage keeper acquiring a lien under the provisions of this act,' which occur in § 3b, would seem to refer to such a lien as is given in § 3a, and such a lien is only given where the motor vehicle is 'kept by them,' and has been taken out of the possession of the lienor against his will." And in Breene v. Fankhauser (1910) 137 App. Div. 124, 121 N. Y. Supp. 1004, it was held that if the proprietor of a garage had a lien on an automobile for storage and repairs, he lost the lien by voluntarily surrendering the machine, with the possession of it.

Although garage keepers' liens have been extended by statute, such liens still depend upon possession, and so, in Grand Garage v. Pacific Banks (1918) 170 N. Y. Supp. 2, where a garage keeper allowed the owner of a car to take it out from time to time, and the garage man delivered the car to the owner, who in turn delivered it to a third party to exhibit to a prospective customer, the third party failing to return it to the garage man before the insolvency of the owner, the garage keeper, by thus voluntarily parting with the car, parted with his lien on the automobile for storage and supplies.

c. Priority.

In Jensen v. Wilcox Lumber Co. (1920) 295 Ill. 294, 129 N. E. 133, the court held that the Garage Lien Act, which purported to authorize a garage keeper to enforce a lien for storage charges, etc., which accrued after the filing on record of a chattel mortgage on a car, as a prior lien to that of the chattel mortgage, was unconstitutional as special legislation arbitrarily discriminating in favor of one class, leaving unaffected others similarly situated, between whom and the class favored there existed no reasonable basis for discrimination; and furthermore, the act was unconstitutional as destroying property rights without due process of law and violating the obligation of contracts, contrary to the prohibition of the Federal Constitution. The court says: "Furthermore, the lien

of Johnson [the mortagee in the chattel mortgage] . . . was a valid property right, which could not be destroyed in violation of § 2 of our Bill of Rights, that is, without due process of law. Our statute on mortgages of personal property provides that a chattel mortgage acknowledged and recorded in the manner required shall be good and valid from the time it is filed for record until the maturity of the debt, provided the time does not exceed three years. If the Garage Lien Act is valid, it would destroy that lien, which is a legal and valid property right. It will be noticed that § 3a provides that the lien shall not apply to property sold on conditional sale while the vendor remains unpaid, if the contract of sale or mortgage of the conditional vendor has been filed for record. . . . It is difficult to see any valid reason why a person holding a contract of conditional sale should be protected and one holding a valid. chattel mortgage should not be. . . By the agreement between the parties to this chattel mortgage, embraced in and made part of that instrument, the mortgagee on maturity of the note, or sooner if he felt insecure and unsafe, was given the right to take the property and sell it for the purpose of paying the note. If the lien of the mortgagee can be destroyed by legislative enactment, the effect of the act would be to violate the obligations of contracts, contrary to the prohibition of the Federal Constitution that no state shall pass any law impairing the obligations of contracts." See also Thurber Art Galleries v. Rienzi Garage (1921) 297 Ill. 272, 130 N. E. 747, in which the act was again held unconstitutional.

But in Wolfman Co. v. Eisenberg (1921) 116 Misc. 43, 190 N. Y. Supp. 259, it was held that, since the enactment of the Lien Law, giving garage men liens for storage and supplies for automobiles, such a lien has priority over a purchase-money chattel mortgage previously filed to secure payment for the truck. The court says: "The plaintiff [vendor of truck to bailor] knew, or was chargeable with knowledge, that the statute then gave

the garage man this lien, which would attach to any automobile truck placed with him. It was intended to protect every keeper of a garage by giving him a lien. And the plaintiff could not, by its mortgage, deprive the keeper of the garage of the benefit of the statute. The parties to the mortgage at the time of execution thereof are presumed to have had the statute in contemplation, and it is true that, under well-established rules of law, the provisions of the statute entered into the contract of mortgage. It may be added that the statute would seem to be a sensible recognition by the legislature of the fact that, under modern conditions, particularly in the centers of population, where comparatively few own private garages, storage is as essential to the preservation of an automobile as are repairs, and that there is no sound reason for discrimination as to the protection to be afforded the garage man."

And under a statute giving to a person keeping a garage for the storage, maintenance, keeping, or repair of motor vehicles, who in connection 'therewith stores, maintains, etc., any motor vehicle at the request of the owner, "whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise," a lien upon such motor vehicle, it was held in Willys-Overland v. Prudman Auto. Co. (1922) 196 N. Y. Supp. 487, that the garage keeper did not lose his lien by permitting the owner to use his car; and that, where the owner, who had executed a purchasemoney chattel mortgage, continued in possession, although he had defaulted in payment of the mortgage and stored the car at the garage, the garage man's lien for storage, etc., took priority over that of the mortgagee in the purchase-money mortgage.

In Doody v. Collins (1916) 223 Mass. 332, 111 N. E. 897, where the owner of an automobile had permitted the car to be registered in the name of another person and used by the latter, who stored it in a garage without the knowledge or consent of the owner, the owner's conduct as to the

third party's use and control of the car being unknown to the garage man, and the owner, learning of the storage of the car in the garage, notified the garage man of her ownership of the car, and that the third party would be responsible for the storage charges, and that he (the garage man) should not allow the car to be taken from the garage by the third party without her written consent, and that the garage man should hold the car subject to her disposal, it was held that, from the date of said notification, the garage man, by virtue of a statute, had a lien on the automobile for proper charges for storage and care, enforceable against the owner of the car, unless the owner could prove prior payment of the proper charges, or tender of payment and refusal of garage man to accept same, or such other conduct on his part as estopped him to contend that he had a lien or that the plaintiff had not made sufficient tender.

In Adler v. Godfrey (1913) 153 Wis. 186, 140 N. W. 1115, where the conditional vendee of an automobile mortgaged same (the mortgage being filed) to a third party, who allowed the conditional vendee to remain in possession, and although the latter, to the knowledge of the third-party mortgagee, kept the car in a public garage, it was held that the garage keeper did not acquire a lien for storage as against the third-party mortgagee, and the vendor of the mortgagor acquired no such lien by paying the storage claim.

d. Assignment.

In Koroleff v. Schildkraut (1919) 179 N. Y. Supp. 117, it was held that where an owner of taxicabs stored them with a garage man, the latter was bound to keep them until the expiration of the period for which they were stored, or, in the absence of any definite period of storage, he could not terminate the bailment without notice to the bailor; thus, where the garage man, without the knowledge or consent of the owner, assigned his lien for storage, gasolene, and repairs on the taxicabs to

another garage man and delivered the taxicabs to the latter, the latter could not enforce the lien which the original garage keeper was given by statute, so long as the taxicabs were in his possession, and no lien in favor of the assignee garage man arose for the storage in his own garage without the consent of the owner of the taxicabs. The court says: "The lien given by the statute cannot be sep. arated from the right to possession of the article on which the lien exists, and since it is clear that the garage keeper could not assign to any other person his right as bailee, and since his only right to possession was created by and existed under the contract of bailment, it follows that the lien could not be assigned."

IV. Miscellaneous.

In La Rosa v. Nichols (1918) 92 N. J. L. 375, 6 A.L.R. 412, 105 Atl. 201, the court reversing (1918) 91 N. J. L. 355, 103 Atl. 390, in an action by an infant to replevy an automobile from a garage man on which the latter was asserting a statutory lien for storage charges and work and supplies, the infant admitting the making of the contract for storage and repairs with the garage man, and admitting that he falsely represented himself to be of age to the garage men, but seeking to repudiate the contract in this action on the ground of infancy, the court held that the minor would not be permitted to set up the privilege of infancy, because by his fraudulent conduct he had estopped himself from so pleading; and this in a court at law, as well as in a court of equity.

Under a statute giving a lien to garage keepers for the storage, maintenance, keeping, and repairing of motor vehicles, where such storage, repairs, etc., are made "at the request or with consent of the owner, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise," it was held in Lloyd v. Kilpatrick (1911) 71 Misc. 19, 127 N. Y. Supp. 1096, where the owner of the automobiles sought to be impressed with the lien had leased

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them to a party who, in turn, sublet them to another party, who left them at the garage where the costs of repairs, storage, etc., was incurred, that a lien could not be impressed on the cars against the owner, on the ground that they were stored at the garage and repaired by his consent, even though an employee of his had visited the garage and noticed the repairs being made upon the cars, and, in addition, had furnished new parts for a portion of them, as mere knowledge does not imply the consent mentioned in the statute. To sustain this holding the court quotes from another case construing a mechanics' lien law, as follows: ""There is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute.' The evidence in this case, while it might possibly show knowledge on the part of the defendant, Henry Ducasse & Company [owners of the automobiles], fails to show some affirmative act respecting the particular improvement from which its knowledge and consent may be properly inferred." Nor, says the court, was the knowledge or consent of the lessee and sublessee sufficient to impress a lien on the automobiles, as nothing is said in the statute about a lessee or a sublessee. The court says: "The phrase 'or otherwise' as used in the statute cannot be extended to mean a lessee or a sublessee, because, under the doctrine of ejusdem generis, the words 'or otherwise' can only embrace things of the same kind or class as those with which they are connected. A lessee or a sublessee is not ejusdem generis with an owner, a conditional vendee, or a mortgagor remaining in possession; and, therefore, their knowledge or consent cannot avail the plaintiff [garage keeper] in this action." See also Leitch v. Sanford Motor Truck Co. (1924) Pa. 123 Atl. 658, for