Ross v. Spaniol , 122 Or. 424 ( 1926 )

This is a suit brought to foreclose a lien on a biplane. After alleging that the defendants, Spaniol and Thomas, were copartners and owners of a certain "Curtiss J.N. 4 Biplane," the complaint goes on to state that the defendants, Spaniol and Thomas, made a contract with the defendant Woodruff for doing and performing work and labor necessary in remodeling the biplane; that, in pursuance thereof, the firm turned over to Woodruff, about January 20, 1924, the actual possession of the biplane and that he took and received the possession thereof;

"That at the special request of the said Chas. S. Woodruff, as contractor as above alleged, plaintiff, at Portland, Oregon, performed work and labor, as a mechanic and helper, in and about the remodeling and repairing of the said biplane, between the 18th day of February, 1924, and the 24th day of March, 1924, inclusive, * *"

for which work and repair, after deducting offsets, there was due a balance of $98 as the reasonable value of the work; that each of the defendants has neglected and refused to pay the same, and that the work was finished March 24, 1924. The plaintiff's first pleading then continues, reciting the making and filing of his verified claim in the office of the county clerk and recorder of Multnomah County, Oregon. Other details follow, culminating in this suit. Five other causes of suit are alleged in behalf of other parties for repair on the biplane which had been assigned to the plaintiff.

The answer admits the partnership of Spaniol and Thomas, the contract with the defendant Woodruff for the remodeling and repairing of the airplane, and that "pursuant to said contract said airplane was delivered into the actual possession of said C.S. Woodruff for the purpose of remodeling and repairing same." Otherwise the complaint is denied in toto. Affirmatively defendants, Spaniol and Thomas, answer that Woodruff was conducting a school of airplane mechanics in Portland, Oregon; that plaintiff applied for admission as a student therein and paid Woodruff the required tuition and was thereupon enrolled in said school and received instruction in the principles of airplane mechanics and construction, and finally that all work and labor performed by plaintiff at the instance of Woodruff, in said school, or upon the airplane described in plaintiff's complaint, was incidental to and constituted a necessary part of his course of instruction in said school, and was performed by him with the distinct knowledge that he was not employed in the school, nor would he receive any pay for any work or labor performed by him upon said airplane in said school. All this was traversed by the reply. The defendant Woodruff made no appearance or defense. The Circuit Court entered a decree for the defendants, dismissing the suit with costs, and the plaintiff has appealed.

The theory of the Circuit Court, as reflected in the findings of fact and conclusions of law, was that the plaintiff and his assignors, while they performed work and labor on the biplane, did so at the instance and request of the defendant Woodruff and that

"Neither the plaintiff nor his assignors had the possession of said airplane at any time, and at most, they were only employees, if not students of C.S. Woodruff, and at all times the actual possession of said airplane was in C.S. Woodruff while it was being so remodeled, rebuilt and repaired, and was, by C.S. Woodruff, delivered to the defendants, Spaniol and Thomas, as fully completed on or about the 26th day of March, 1924, and the same was not, at any time, either in the actual or implied possession or control of such lien claimants."

The statute under which this suit was instituted reads, so far as applicable, as follows:

"Every person, firm or corporation who has expended labor, skill or materials, including automobile tires, upon any chattel, or has furnished storage for said chattel, at the request of its owner, reputed owner, or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon said chattel for the contract price for all such expenditure, or in the absence of such contract price, for the reasonable worth of such expenditure for a period of one year from and after such expenditure, notwithstanding the fact that the possession of such chattel has been surrendered to the owner, or lawful possessor thereof." Or. L., § 10272.

The following section provides for making the lien effectual by the claimants filing a verified claim in writing in the office of the county clerk of the county in which such labor, skill and material were expended. No question is made about the sufficiency of the notice in this case.

In Section 10275, Or. L., it is said that:

"Every person who is in possession of a chattel under an agreement for the purchase thereof, whether the title thereto be in him or his vendor, and every other person who is in lawful possession of a chattel shall, for the purpose of this act, be deemed the owner thereof, or authorized agent of the owner, * *"

No contest is made as to the correctness of the procedure to enforce the lien. The whole case is made to hang on the question of possession to the effect that, inasmuch as plaintiff did not have actual manual possession of the plane exclusive of other people, except so far as it may rest upon his actual labor upon the chattel, he is not entitled to a lien. In analogy to the mechanic's lien law, whereby a person working for a contractor or a subcontractor on a building at the instance of either of the latter, although possibly unknown to the actual owner of the building, may secure a lien thereon, the statute under which this suit is instituted declares that:

"Every person * * who has expended labor * * upon any chattel * * at the request of its owner, reputed owner, or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon said chattel * * notwithstanding the fact that the possession of such chattel has been surrendered to the owner, or lawful possessor thereof."

In Hiner v. Pitts, 89 Or. 602 (175 P. 133), the plaintiffs were machinists whose shop was in the City of Tillamook. Pitts, the defendant, was engaged in logging operations some twenty-five or thirty miles distant from the shop. The defendant engaged the plaintiffs to keep that logging outfit in repair and working order and from time to time they went out into the woods and repaired the machinery there. Sometimes they took parts of it to their shop in Tillamook, mended them and took them out again and installed them in the machinery, thus keeping the plant in operation. It was there held that such conditions gave rise to a lien in favor of the plaintiffs although the machinery remained in the custody of the defendant. Distinguishing between a common-law lien on a chattel, requiring the claimant to retain possession of the same, and the statutory lien authorized by the enactment above quoted, it was there said:

"At common law, one performing such services in the repair or manufacture of a chattel had a lien thereupon so long as he retained possession of the goods, but the moment he gave up that custody his lien ended. It was competent for the legislative power to award a lien irrespective of possession. This statute directly declares that the persons named therein who rendered the services described, at the request of the owner of the chattel, have a lien thereupon. The concluding clause of section 7497, ``notwithstanding the fact that the possession of such chattel has been surrendered to the owner thereof,' does not detract from the force of the language in the earlier part of the section, awarding a lien. The foundation of the lien in all cases, whether at common law or under this statute, is the furnishing of material or labor. The retention of possession was the only means known at common law for the enforcement of the right grounded upon the things supplied or services rendered. No matter how long the person had retained possession, he would not have a lien unless he had done or furnished something for the repair or improvement of the chattel. While it retains the condition of performance of labor or supply of material as the basis of a lien, the statute does not require that the owner be utterly deprived of all charge of the chattel. Possession in the sense of exclusive custody is made a nonessential by this enactment."

Later, in Tulloch v. Cockrum, 115 Or. 601 (236 P. 1045), the court was discussing the same statute and, citing with approval Hiner v. Pitts, supra, it was there said:

"* * It is certain that the existence of the lien does not depend upon the question of possession (Hiner v. Pitts,89 Or. 605, 175 P. 133), as section 10272, Or. L., provides for a lien ``notwithstanding the fact that the possession of such chattel has been surrendered to the owner.'"

Both these cases, Hiner v. Pitts and Tulloch v.Cockrum, were heard in bank by the full court and were decided without any dissent. It was within the power of the legislature to modify the common-law rule about retaining possession of a chattel upon which a lien was claimed for the repair or manufacture thereof and to dispense with such possession as an element supporting the enforcement of the lien.

In Jacobs v. Knapp, 50 N.H. 71, an attempt was made by one who labored on some chattels belonging to the defendant but who had no contractual relationship with that defendant to recover for his services. The suit had a double aspect; one was that plaintiff sought to assert and foreclose a lien upon the chattel without having retained possession of it and the other was that he had attached the property to provide for the satisfaction of his claim. As to the first contention, the court very properly held that the statute of New Hampshire, relating to liens in such instances, did not provide for any notice to the original owner of the property; hence the proceeding was an attempt to divest the actual owner of his rights without due process of law or having notice of his day in court and consequently the statute was unconstitutional. On the other hand, not having any contract with the actual owner or any relation with him out of which a debt would arise in favor of the defendant and against the owner, there was no foundation for an attachment. Soon after this case was decided the New Hampshire statute was amended so as to provide for filing a notice of lien, thus overcoming the principal objection discussed in the opinion.

In Hollingsworth v. Dow, 19 Pick. (Mass.) 228, cited by the defendants, the court treated solely of a common-law lien depending on the retention of possession by an original contractor.

In McDearmid v. Foster, 14 Or. 417 (12 P. 813), the court discussed and made its decision dependent upon a statute then in existence authorizing the person repairing the article of personal property to "hold and retain possession of the same until such just and reasonable charges shall be paid." To all intents and purposes, we have already decided in Hiner v.Pitts and Tulloch v. Cockrum that the question of possession is not controlling under our present statute. It provides for notice to the original owner by filing a claim of lien in the public records, thus imparting notice to all concerned and obviating the rule upon which the New Hampshire case of Jacobs v. Knapp was decided. The plaintiff here is "every person." He comes strictly within the terms of the statute. He is not a slave or serf whose personality or identity is lost in the thrall of his servitude. The statutory term "every person" is universal in scope and makes the plaintiff capable of asserting a lien.

It is admitted in the pleadings, alleged by the complaint as well as by the answer, that the chattel was delivered into the possession of Woodruff. Woodruff, therefore, was "the lawful possessor thereof," under the terms of Section 10272, while Section 10275, Or. L., expressly makes such "lawful possessor" the authorized agent of the original owner for the purposes of this act, viz., for the purpose of establishing a lien on the chattel in question. The possession of Woodruff was lawful. Both parties admit it. The statute makes no further qualification of that possession than that it be lawful. We have no right to construe or legislate any further limitations or restrictions upon that possession. Woodruff comes within the terms of these two sections as authorized to request the performance of the labor and services in the repairing of the chattel in question. Such statutes are made to afford a remedy for the man who works with his hands and by all the modern authorities are to be construed liberally to effect their purpose. Often it is that such men have no means of retaining actual manual possession of the machinery or other property upon which they have expended their labor. The statute provides this remedy for them and creates a lien under certain circumstances detailed in its terms without including the requirement of retaining possession. The owner has his notice given him, his day in court. On that score the statute is quite as worthy of enforcement as the general mechanic's lien law providing for maintaining a lien upon a building upon which a laborer has worked. If actual possession by the claimant were enforced in such instances, it would defeat the harvesters' lien (Or. L., § 10230); or the loggers' lien (Or. L., § 10236), or the horseshoers' lien (Or. L., § 10252), or the sheep-herders' lien (Or. L., § 10259), in each of which the enactment awarding the lien is in substantially the same terms as the one in question and in none of which is possession by the claimant at all intimated. In all such instances retention of possession is practically impossible for the class of laborers for whose benefit the laws have been enacted. The design of the statute is to make the filing of notice of claim subserve the reason and purpose of the common-law possession, viz., to inform all persons interested that the claimant has not been paid for his labor. How can a cook in a logging camp retain possession of a lot of logs? Is it practicable for a sheep-herder, who ordinarily has only his horse and a dog or two and no feed at the end of the grazing season, to keep possession of a thousand head of sheep? Yet further: Quite generally such claims are made by individuals each in his own right. Many of them are often found working on a machine at the same time and each is entitled to a lien. If continued possession is essential to the validity of a lien under our statute, only one laborer could assert a lien, for it is impossible for a number of persons claiming in severalty to maintain exclusive possession of a single chattel at one time.

The testimony abundantly supports the allegations of the complaint as to the performance of the labor in the instant case and that it was done at the request of a person who is admitted to be the lawful possessor of the chattel and hence the agent of the owner for that purpose. Unless we can say that the plaintiff is not "every person" and that Woodruff, notwithstanding the averments and admission to the pleadings, was not a "lawful possessor thereof," we should award a decree for the plaintiff according to the prayer of his complaint. The common-law possession is not a factor in the case. Its assertion emasculates the statute and defeats its beneficent purpose.

To conclude: We have present all the requisite actors contemplated by the statute. The plaintiff is that "every person" who "has expended labor" upon a chattel. Woodruff is admittedly the "every other person who is in lawful possession of the chattel." The scope of his authority as defined by the statute, which we cannot gainsay or restrict, is that "for the purpose of this act, he shall be deemed the owner thereof or the authorized agent of the owner thereof." Equipped with this statutory authority, Woodruff's request to the plaintiff to do the work was as binding upon Spaniol and Thomas, the primary owners of the biplane, as if they had made it in person. The rendition of the services followed. They are the foundation of the lien. The reason of the common-law possession, that of giving continuous notice of the claim, is subserved by filing notice of the claim for public record.

The decree of the Circuit Court should be reversed and one here entered in favor of the plaintiff according to the prayer of his complaint.