If the conditional seller expressly or impliedly consents to having repairs made, the repairman's lien is superior to his, although the conditional sale contract is a matter of public record.49

In some states a repairman has a lien for repairs made at the request of a conditional buyer or mortgagor in possession; the buyer or mortgagor being considered the agent of the seller or mortgagee for the purpose of procuring repairs.50

In Illinois the rule has been laid down, in an automobile case, that, "While a mortgagor cannot by contract create a lien in behalf of a mechanic so as to give it priority over a previously recorded chattel mortgage, the mortgagee's authority for the creation of such a lien may be implied where the property is to be retained and used by the mortgagor, and is of such a character as to involve the occasion for

49 Etchen v. Dennis & Son, 104 Kan. 241, 178 Pac. 408 (1919); Scott v. Mercer Garage & Auto Sales Co., 88 W. Va. 92, 106 S. E. 425 (1921).

50 Weber Imp. & Auto. Co. v. Pearson, 132 Ark. 101, 200 S. W. 273 (1917); Meyers v. Neeley & Ensor Auto Co., Md. 121 Atl. 916 (1923); City National Bank v. Laughlin, Tex. Civ. App. 210 S. W. 617 (1919).

"Necessary repairs are for the betterment of the property and, under the circumstances in the instant case, where the contract expressly provides that the conditional vendee shall make all repairs necessary to keep the property in first-class condition, the vendee in causing such repairs to be made might well be held to be the agent of the vendors in causing necessary repairs to be made. Weber Implement, etc., Co. v. Pearson, 132 Ark. 101, 200 S. W. 273, L. R. A. 1918D 327. But where the statutory lien is for work or materials not necessary for the preservation of the property and not authorized by the vendor, and the statute is silent on the question, the lien does not take priority over the lien or right of the conditional vendor. Eccles v. Will, 23 N. M. 623, 170 Pac. 748, L. R. A. 1918C 1022." Atlas Securities Co. v. Grove, Ind. App., 137 N.

E. 570 (1922).

The Supreme Court of Indiana, in Watts v. Sweeney, 127 Ind. 123, 26 N. E. 680, 22 Am. St. Rep. 615, said:

"Where property is to be retained and used by the mortgagor for a longer period of time, it will be presumed to have been the intention of the parties to the mortgage, where it is property liable to such repairs, that it is to be kept in repair; and when the property is machinery, or property of

In Hammond v. Danielson, 126 Mass. 294, a mortgaged hack used for hire was repaired at the instance of the mortgagor, and it was held that the person making the repairs had a lien therefor as against the mortgagee. The Court said:

"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 affording a means of earning wherewithal to pay off the mortgage debt."

The Supreme Court of New Jersey, in an opinion delivered by Justice Pitney, decided that a blacksmith who repaired a mortgaged wagon under employment by the mortgagor, who had the possession and use of it by permission of the mortgagee, was entitled to a lien for the repairs at common law. It was held that the mortgagor had implied authority from the mortgagee to have the wagon kept in a condition for its intended use. Ruppert v. Zang, 73 N. J. L. 216, 62 Atl. 998.

In White v. Smith, 44 N. J. L. 105, 43 Am. Rep. 347, where the lien of a wheelwright for repairs to a wagon

the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use. 51

In Illinois, a statute which attempted to give liens for storage charges priority over liens of chattel mortgages theretofore recorded, was declared invalid.52

In Indiana it has been held that a lien for repairs made at the instance of a conditional buyer, was not valid against the conditional seller or his assignee.53

In Iowa, a mortgagor in possession cannot, without express authority, bind the mortgagee on a contract for storage.5

54

In Maine, a repairman has no common law lien as against a conditional seller who has recorded his agreement of sale, and has not consented to the lien.55

It is held in Massachusetts that authority of a mortgagor in possession to create a lien for repairs must be implied from the common knowledge that an automobile for its preservation and valuable use may require repairs from skilled mechanics.56

In Minnesota, by statute, a lien for work on personal property is made superior to a prior chattel mortgage.57.

In Mississippi, the seller of an automobile with title retained has superior rights over a mechanic's lien for repairs of car at the instance of the purchaser in possession, unless repairs are reasonably necessary to preserve the property, permit its operation, and prevent deterioration. Under such necessitous circumstances, authority of the owner to repair will be implied.58

was sustained as against an existing mortgage, it was said, after a review of decisions on the subject, that they placed the right to the lien upon"the ground that the value of the chattel was enhanced by the labor of the workman, and that it was presumably the intention of all parties that the chattel should be kept in a proper state of repair; from which facts authority was inferred that the person in possession and entitled to use it might have the repairs made upon the usual and ordinary terms, i. e., that the property having been augmented in value by the repairs, the workman should have a lien on it for the work and labor which enhanced its value, and for which, by the common law. he would be entitled to his lien if he was lawfully employed to render the services."'

In the leading case of Williams v. Allsup, 10 C. B. (N. S.) 417, in which a shipwright was held to be entitled to a prior lien for repairs on a vessel which had been mortgaged, it was said that the authority implied from possession and use by the mortgagor was to have the vessel repaired on the usual terms, which would not involve the credit of the mortgagee, as the mort

gagor alone would be personally liable, but would include a lien on the vessel in favor of the shipwright for the value of his work.

51 Rehm v. Viall, 185 Ill. App. 425 (1914).

Contra. Overland Auto. Co. v. Findley, Tex. Civ. App. —, 234 S. W. 106 (1921).

52 Jensen v. Wilcox Lbr. Co., 295 Ill. 294, 129 N. E. 133 (1920); Thurber Art Galleries v. Rienzi Garage, 297 Ill. 272, 130 N. E. 747 (1921).

53 Consolidated Garage & Sales Co. v. Dilts, Ind. App. ་་་ 137 N. E. 771 (1923).

54 Graben Motor Co. v Brown Garage Co., Iå. 195 N. W. 752 (1923). 55 Bath Motor Mart v. Miller, 122 Me. 29, 118 Atl. 715 (1922).

56 The mortgagee by leaving possession of the automobile with the mortgagor with right to use it inferentially empowered the latter to keep it in a proper state of repair for the benefit of both." Guaranty Security Corp. v. Brophy, 243 Mass. 597, 137 N. E. 751 (1923).

57 Stebbins v. Balfour, 195 N. W. 773 (1923).

Minn.

58 Moorhead Motor Co. v. Walker

In New York a statutory lien for repairs is held superior to the lien of a recorded chattel mortgage.59

In Rhode Island it has been held that a conditional buyer in possession has no implied authority to subject the automobile to a lien for repairs superior to the rights of the conditional seller.60

A conditional sale agreement provided that the seller could take possession of the car if it was of the opinion that it was not being properly cared for. The seller's (plaintiff's) president saw the car two or three weeks after the sale, and it appeared to have been improperly cared for. He did nothing, however, and thereafter the car was delivered to defendant for repairs. It was held that in these circumstances the plaintiff was not entitled to possession as against the defendant on the ground that the car was not properly cared for. "As the plaintiff did not prove that the defendant had actual notice of the conditional sale, or that there was default in the payment of any of the notes when the car was delivered to the defendant, it is plain that the plaintiff failed to sustain the burden of proof."

61

The provisions of a statute relating to the ownership, registration, and transfer of motor vehicles do not operate as constructive notice to the world of the defects in the title or interest of prior owners of ' an automobile.62

A license registration number plate on a car is not notice that a previous owner, in whose name the car is registered, holds a mortgage on the same.63

§ 1467. Same-Unrecorded chattel mortgage or conditional sale agreement. In some states a chattel mortgage or conditional sale agreement must be recorded in order to be good against subsequent purchasers, mortgagees, pledges, and lienees.64

It is sometimes provided by the terms of the conditional sale contract, that the contract retaining title in the seller shall not be good as against third persons unless recorded.65

In Iowa, a lien for repairs is superior to the rights of a conditional seller whose contract of sale is not recorded.66

In the absence of a statute to the contrary, a conditional sales agreement is not a mortgage and is not subject to statutory provisions regarding the recording of chattel mortgages.67

One who attached an automobile to satisfy a judgment for personal

injuries, who had knowledge of a prior unrecorded chattel mortgage, was not a "purchaser for value" of the machine so as to take precedence over the rights of the mortgagee.68

§ 1468. Same-Car mortgaged in one state and repaired in another. An automobile purchased in Jackson county, Missouri, on which a chattel mortgage was duly recorded and in force in that county, was left at a garage in Kansas for repairs by another than the original purchaser. Held, that the garageman was entitled to a lien under the Kansas statute, and to retain possession of the automobile until his charges were paid, although the mortgage in Missouri was valid.69

§ 1469. Lien for constructing new body before delivery of car to conditional buyer. In Washington, the lien of one who constructed a delivery body for a chassis, which had been used with a pleasure body, but sold for truck purposes under an agreement to have a delivery body put on in place of the pleasure body, was held to be superior to the rights of the conditional purchaser, who knew the seller could not do such work in his own shop.70

§ 1470. Lien for repairs ordered by person other than owner. A lien for repairs on an automobile does not attach unless the repairs were made at the request or with the consent of the owner. The consent of a hirer of an automobile is not sufficient to cause the lien to attach.71

Where a servant, acting within the scope of his employment, took his employer's automobile to a repair shop and ordered repairs to be made thereon, the repairman had a lien on such vehicle for the reasonable value of the repairs made by him in pursuance of such instructions.72

Where the plaintiff in a replevin case obtained possession of the automobile in controversy and had the same repaired, and the case was decided in favor of the defendant, the repairman's lien was not good as against the defendant.73

It is held that one who repairs an automobile upon request of the bailee thereof, has no lien on the car as against the owner. Hence, where an automobile was leased at a monthly rental, and the contract contained a covenant providing that if the hirer "at any time while this contract is in full force" shall return the car to the owner and shall have performed "all the covenants and agreements herein contained" he shall have the option of purchasing said car for a stipulated price, and be credited thereon with the amount paid for the hire thereof, it was held that one who repaired such car at the request

68 Clark v. Ford, 179 Ky. 797, 201 S. W. 344 (1918).

69 Willys Overland Co. v. Evans, 104 Kan. 632, 180 Pac. 235 (1919).

70 Barbour v. Hodge, 99 Wash. 578, 170 Pac. 115 (1918).

71 Bath Motor Mart v. Miller, 122

Me. 29, 118 Atl. 715 (1922); Lloyd v. Kilpatrick, 71 Misc. 19, 127 N. Y. Supp. 1096 (1911).

72 Milgrim v. Coon, 93 Misc. 78, 156 N. Y. Supp. 544 (1915).

73 Naylor v. Knapp, 92 N. J. L. 253, 104 Atl. 131 (1918).

of the hirer or lessee had no lien as against the owner; such contract being one of bailment.74

§ 1471. Same-Estoppel of owner to assert rights against repairman. Where it appeared that the lessee of an automobile, with the knowledge of the owner, secured a license in his name as owner, and displayed the license number on the machine, it was held that the owner, by such methods having enabled the lessee to obtain credit for the repair of the machine, was not in a position to assert his title as against one who had been misled by his misconduct and want of conformity to the law.75

Where a repairman furnished accessories for a car and repaired it at the instance of a third person who had possession of the car, with the knowledge of the owner, and on the assumption that payment for same would be secured by a lien on the car, the owner was estopped from denying ownership of such third person so far as it would affect the repairman's lien.76

§ 1472. Repairman as "wheelwright." One who conducts a garage in which he repairs automobiles is a "wheelwright," within the meaning of a statute providing that, "Blacksmiths and wheelwrights who perform work or labor for any person, if unpaid for the same, shall have an absolute lien on the product of their labor and upon all wagons, carriages, farm implements and other articles repaired by them, for such work or labor and for all materials furnished by them and used in such product or repairs." Such statute gives him a lien on an automobile for repairs made thereon by him. The word "wheelwright" is defined as "a man whose occupation is to make or repair wheels and wheeled vehicles."77

§ 1473. Validity of lien statute making no provision for owner to be heard on disputed claim. A statute giving a lien to a repairman, and which prescribes the steps to be taken to enforce the lien by public sale, is not invalid because no provision is made for the owner to be heard in case he disputes the amount of the lien, since the statute specifies the amount of the lien to be the amount due from the owner, and not the sum claimed by the repairman, who is liable as for conversion if he claims too much and enforces his claim.78

§ 1474. Discharge of lien. A tender of the amount of charges due for repairs discharges the repairman's lien.79

§ 1475. Proof of repairs made on automobile. Where the plaintiff sued to recover for labor and material furnished in repairing an

74 DeWitt v. Gardner, 28 Pa. Dist. 920 (1919).

75 Steele v. Latrobe Auto Co., 25 Pa. Dist. 1078 (1916).

76 Denton v. Berryville Auto Service Co., 147 Ark. 411, 227 S. W. 608 (1921).

77 Weber Imp. & Auto Co. v. Pear

son, 132 Ark. 101, 200 S. W. 273 (1917); Shelton v. Little Rock Auto. Co., 103 Ark. 142, 146 S. W. 129 (1912).

78 Dininny v. Reavis, 100 Misc. 316, 165 N. Y. Supp. 97 (1917).

79 Rush v. Wagner, 184 App. Div. 502, 171 N. Y. Supp. 817 (1918).