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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 his own voluntary act, as in the in- of Johnson [the mortagee in the stant case, may bring replevin. The chattel mortgage] ..

was a valid words, 'any garage keeper acquiring property right, which could not be a lien under the provisions of this act,' destroyed in violation of § 2 of our which occur in § 3b, would seem to re- Bill of Rights,—that is, without due fer to such a lien as is given in § 3a, process of law. Our statute on mortand such a lien is only given where gages of personal property provides the motor vehicle is kept by them,' that a chattel mortgage acknowledged and has been taken out of the posses- and recorded in the manner required sion of the lienor against his will.” shall be good and valid from the time

And in Breene v. Fankhauser (1910) it is filed for record until the maturity 137 App. Div. 124, 121 N. Y. Supp. of the debt, provided the time does 1004, it was held that if the proprietor not exceed three years. If the Garage of a garage had a lien on an automo- Lien Act is valid, it would destroy that bile for storage and repairs, he lost lien, which is a legal and valid properthe lien by voluntarily surrendering ty right. It will be noticed that $ the machine, with the possession of it. 3a provides that the lien shall not

Although garage keepers' liens have apply to property sold on conditional been extended by statute, such liens sale while the vendor remains unpaid, still depend upon possession, and so,

if the contract of sale or mortgage of in Grand Garage v. Pacific Banks the conditional vendor has been filed (1918) 170 N. Y. Supp. 2, where a for record.... It is difficult to see garage keeper allowed the owner of any valid reason why a person holding a car to take it out from time to time, a contract of conditional sale should and the garage man delivered the car be protected and one holding a valid to the owner, who in turn delivered it chattel mortgage should not be. to a third party to exhibit to a pro- By the agreement between the parties spective customer, the third party fail- to this chattel mortgage, embraced in ing to return it to the garage man be- and made part of that instrument, the fore the insolvency of the owner, the mortgagee on maturity of the note, or garage keeper, by thus voluntarily sooner if he felt insecure and unsafe, parting with the car, parted with his was given the right to take the proplien on the automobile for storage and

erty and sell it for the purpose of supplies.

paying the note. If the lien of the c. Priority.

mortgagee can be destroyed by legisIn Jensen v. Wilcox Lumber Co.

lative enactment, the effect of the act (1920) 295 III. 294, 129 N. E. 133, the

would be to violate the obligations court held that the Garage Lien Act,

of contracts, contrary to the prohibiwhich purported to authorize

tion of the Federal Constitution that garage keeper to enforce a lien for

no state shall pass any law impairing storage charges, etc., which accrued

the obligations of contracts." See after the filing on

record of

also Thurber Art Galleries v. Rienzi chattel mortgage on

Garage (1921) 297 Ill. 272, 130 N. E.

a car, prior lien to that of the chattel mort

747, in which the act was again held

unconstitutional. gage, was unconstitutional as special legislation arbitrarily discriminating

But in Wolfman Co. v. Eisenberg in favor of one class, leaving un

(1921) 116 Misc. 43, 190 N. Y. Supp. affected others similarly situated, be- 259, it was held that, since the enacttween whom and the class favored ment of the Lien Law, giving garage there existed no reasonable basis for men liens for storage and supplies for discrimination; and furthermore, the automobiles, such a lien has priority act was unconstitutional as destroying over a purchase-money chattel mortproperty rights without due process gage previously filed to secure payof law and violating the obligation of ment for the truck. The court says: contracts, contrary to the prohibition “The plaintiff (vendor of truck to of the Federal Constitution. The bailor] knew, or was chargeable with court says: “Furthermore, the lien knowledge, that the statute then gave

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the garage man this lien, which third party's use and control of the would attach to any automobile truck car being unknown to the garage man, placed with him. It was intended to and the owner, learning of the storage protect every keeper of a garage by of the car in the garage, notified the giving him a lien. And the plaintiff garage man of her ownership of the could not, by its mortgage, deprive the car, and that the third party would keeper of the garage of the benefit of be responsible for the storage the statute. The parties to the mort charges, and that he (the garage gage at the time of execution thereof man) should not allow the car to be are presumed to have had the statute taken from the garage by the third in contemplation, and it is true that, party without her written consent, under well-established rules of law, and that the garage man should hold the provisions of the statute entered the car subject to her disposal, it was into the contract of mortgage. It may held that, from the date of said notibe added that the statute would seem fication, the garage man, by virtue of to be a sensible recognition by the a statute, had a lien on the automobile legislature of the fact that, under for proper charges for storage and modern conditions, particularly in the care, enforceable against the owner of centers of population, where com- the car, unless the owner could prove paratively few own private garages, prior payment of the proper charges, storage is as essential to the preserva- or tender of payment and refusal of tion of an automobile as are repairs, garage man to accept same, or such and that there is no sound reason for other conduct on his part as estopped discrimination as to the protection to him to contend that he had a lien or be afforded the garage man."

that the plaintiff had not made sufAnd under a statute giving to a per

ficient tender. son keeping a garage for the storage, In Adler V. Godfrey (1913) 153 maintenance, keeping, or repair of Wis. 186, 140 N. W. 1115, where the motor vehicles, who in connection conditional vendee of an automobile 'therewith stores, maintains, etc., any mortgaged same (the mortgage being motor vehicle at the request of the filed) to a third party, who allowed owner, "whether such owner be a con- the conditional vendee to remain in ditional vendee or a mortgagor re- possession, and although the latter, to maining in possession or otherwise," the knowledge of the third-party a lien upon such motor vehicle, it was mortgagee, kept the car in a public held in Willys-Overland v. Prudman garage, it was held that the garage Auto. Co. (1922) 196 N. Y. Supp. 487, keeper did not acquire a lien for that the garage keeper did not lose storage as against the third-party his lien by permitting the owner to mortgagee, and the vendor of the use his car; and that, where the mortgagor acquired no such lien by owner, who had executed a purchase- paying the storage claim. money chattel mortgage, continued in

d. Assignment. possession, although he had defaulted in payment of the mortgage and

In Koroleff v. Schildkraut (1919) stored the car at the garage, the

179 N. Y. Supp. 117, it was held that garage man's lien for storage, etc.,

where an owner of taxicabs stored took priority over that of the mort

them with a garage man, the latter gagee in the purchase-money mort- was bound to keep them until the exgage.

piration of the period for which they In Doody V. Collins (1916) 223 were stored, or, in the absence of Mass. 332, 111 N. E. 897, where the any definite period of storage, he owner of an automobile had permitted could not terminate the bailment the car to be registered in the name without notice to the bailor; thus, of another person and used by the where the garage man, without the latter, who stored it in a garage with- knowledge or consent of the owner, out the knowledge or consent of the assigned his lien for storage, gasoowner, the owner's conduct as to the lene, and repairs on the taxicabs to another garage man and delivered the them to a party who, in turn, sublet taxicabs to the latter, the latter could them to another party, who left them not enforce the lien which the origi- at the garage where the costs of renal garage keeper was given by stat- pairs, storage, etc., was incurred, that ute, so long as the taxicabs were in a lien could not be impressed on the his possession, and no lien in favor cars against the owner, on the ground of the assignee garage man arose for that they were stored at the garage the storage in his own garage with- and repaired by his consent, even out the consent of the owner of the though an employee of his had visited taxicabs. The court says: “The lien the garage and noticed the repairs given by the statute cannot be sep. being made upon the cars, and, in arated from the right to possession addition, had furnished new parts for of the article on which the lien exists, a portion of them, as mere knowledge and since it is clear that the garage does not imply the consent mentioned keeper could not assign to any other in the statute. To sustain this holdperson his right as bailee, and since ing the court quotes from another his only right to possession was case construing a mechanics' lien created by and existed under the con- law, as follows: “ "There is a marked tract of bailment, it follows that the distinction between the passive aclien could not be assigned."

quiescence of an owner in that he IV. Miscellaneous.

knows the improvements are being

made, improvements which in many In La Rosa v. Nichols (1918) 92

cases he has no right to prevent, and N. J. L. 375, 6 A.L.R. 412, 105 Atl. his actual and express consent or re201, the court reversing (1918) 91

quirement that the improvement shall N. J. L. 355, 103 Atl. 390, in an action be made. It is the latter that constiby an infant to replevy an automobile

tutes the consent mentioned in the from a garage man on which the latter

statute.'

The evidence in this was asserting a statutory lien for case, while it might possibly show storage charges and work and sup

knowledge on the part of the defendplies, the infant admitting the mak

ant, Henry Ducasse & Company ing of the contract for storage and [owners of the automobiles), fails to repairs with the garage man, and show some affirmative act respecting admitting that he falsely represented the particular improvement from himself to be of age to the garage which its knowledge and consent may men, but seeking to repudiate the be properly inferred." Nor, says the contract in this action on the ground

court, was the knowledge or consent of infancy, the court held that the

of the lessee and sublessee sufficient minor would not be permitted to set to impress a lien on the automobiles, up the privilege of infancy, because as nothing is said in the statute about by his fraudulent conduct he had es- a lessee or a sublessee, The court topped himself from so pleading; and says: "The phrase for otherwise' this in a court at law, as well as in as used in the statute cannot be exa court of equity.

tended to mean lessee or a sublessee, Under a statute giving a lien to because, under the doctrine of ejusgarage keepers for the storage, main- dem generis, the words 'or otherwise' tenance, keeping, and repairing of can only embrace things of the same motor vehicles, where such storage,

kind or class as those with which repairs, etc., are made “at the request they are connected. A lessee or a subor with consent of the owner, whether lessee is not ejusdem generis with an such owner be a conditional vendee owner, - a conditional vendee, or or a mortgagor remaining in posses- mortgagor remaining in possession; sion or otherwise,” it was held in and, therefore, their knowledge or Lloyd v. Kilpatrick (1911) 71 Misc. consent cannot avail the plaintiff 19, 127 N. Y. Supp. 1096, where the [garage keeper] in this action." See owner of the automobiles sought to be also Leitch v. Sanford Motor Truck impressed with the lien had leased Co. (1924) Pa. —, 123 Atl. 658, for

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