Opinion
Opinion filed November 18, 1946
1. — Automobiles — Liens. Statute in relation to liens on a vehicle for labor and materials does not destroy the common law lien of an artisan who furnishes labor or materials in the repair of a vehicle while he is in possession of such vehicle.
2. — Set-Off and Counter Claim. In replevin action against blacksmith to recover an automobile truck and equipment, blacksmith's counterclaim, which merely asked judgment for balance due for work on truck without enforcement of a lien, held proper as arising out of the transaction which is the subject matter of plaintiff's claim, notwithstanding counterclaim may or may not diminish or defeat plaintiff's recovery.
3. — Replevin — Pleading. In replevin action it is permissible, under a general denial, to show that the owner was not entitled to the possession of vehicle sought to be replevined because of a lien.
4. — Trial — Instructions. Defendant's instruction on right of recovery upon his counterclaim was not erroneous as failing to give plaintiff's credit for sums of money already paid by them, in view of another instruction which told jury that, in determining amount of recovery upon counterclaim, jury should consider payments previously made to defendant by plaintiffs.
5. — Appeal and Error. Evidence admitted at trial without objection could not be assigned on appeal as having been improperly admitted.
6. — Appeal and Error — Motion for New Trial. Where no point was made in motion for new trial in reference to the verdict being defective, appellate court would construe verdict liberally and would not hold it to be void for mere defects.
7. — Appeal and Error. Where replevin action was presented jointly by plaintiffs and there was no basis for verdict against only one plaintiff, and no point was made of matter in motion for new trial, jury's finding against "plaintiff" instead of "plaintiffs" would be considered as a clerical error.
8. — Replevin. In replevin action to recover possession of a truck where defendant did not attempt to have his lien enforced and claimed no special interest in property, it was not necessary for jury to assess value of his interest.
9. — Replevin. In replevin action to recover possession of a truck where defendant filed a general denial and a counterclaim for balance due for work and materials on truck and jury found for defendant both on his defense and on his counterclaim, judgment should have adjusted the equities between the parties by directing a recovery for defendant of amount due or for return of the truck, which was taken under bond by the plaintiffs, until such sum was paid at the option of the defendant.
10. — Liens — Automobiles — Replevin. Defendant who performed labor and furnished materials for repair of automobile truck, and to whom a balance was found by jury to be due him, was entitled to possession of truck until his lien was discharged and no longer.
11. — Replevin. In replevin for truck obtained by plaintiffs, upon giving bond, from defendant who claimed sum due for repairs thereto defendant recovering verdict on his counterclaim for repairs was entitled to judgment for amount thereof or return of truck until sum due was paid at option of defendant.
Appeal from Circuit Court of Cole County. — Hon. Charles H. Jackson, Judge.
REVERSED AND REMANDED WITH DIRECTIONS.
D.F. Calfee and Scott Peters for appellants.
(1) Defendant did not obtain any written memorandum of the work and material furnished, or to be furnished, on plaintiff's truck, signed by plaintiffs, or either of them; and defendant was not entitled to, and did not have, any lien on said truck. Therefore, plaintiffs were entitled to the possession of their truck and replevin was the proper remedy. Sec. 3608, Revised Statutes of Missouri, 1939; Butterworth v. Soltz, (Mo. App.), 204 S.W. 50, 199 Mo. App. 507. (2) Plaintiff's petition is an ordinary claim in replevin. Riss Co. v. Wallace, 171 S.W. (2), 641, l.c. 643; 350 Mo. 1208. (3) The Court committed error in entering judgment on this verdict and failing to set said verdict aside and grant plaintiffs a new trial. Harrington v. Interstate Securities Co., 57 S.W.2d 438, l.c. 439; Nichols v. Lead Zinc Co., 85 Mo. App. 584. (4) The verdict of the jury was against the evidence, was manifestly and clearly for the wrong party, and was so unreasonable as to manifest passion and prejudice upon the part of the jury; therefore, the court erred in failing to set said verdict aside and grant plaintiffs a new trial of said cause. Trent v. Barber, 56 S.W.2d 151.
Lauf Bond for respondent.
(1) An artisan who provides labor and materials on a vehicle and who retains possession of the same has a lien on such vehicle for the amount of labor and materials furnished. The owner of the vehicle is not entitled to possession of it without first paying the artisan for the work and material so furnished such vehicle. Bostic v. Workman, 31 S.W.2d 218, 224 Mo. App. 645; Sections 3608, 3609, 3610, 3611, 3612, 3613, 3614, R.S. Mo. 1939; Butterworth v. Soltz, 204 S.W. 50, 199 Mo. App. 507; Rowles v. Paulson, 105 S.W.2d 31. (2) Defendant's counterclaim in the case grew out of the same transaction involved in plaintiffs' petition for replevin and destroyed plaintiffs' right to possession of the vehicle which plaintiffs sought to replevin, and, therefore, defendant's counterclaim was proper. Bostic v. Workman, 31 S.W.2d 218, 224 Mo. App. 645; Riss Co. v. Wallace, 171 S.W.2d 641; Weber Implement Automobile Co., v. Ransburg, 274 S.W. 856; Collins v. John Pfingsten Leather Co., 190 S.W. 990, 196 Mo. App. 611; McCormick Harvesting Co. v. Hill, 104 Mo. App. 544, 79 S.W. 745, 750; Anthony v. Carp, 90 Mo. App. 387. (3) The new code for civil procedure provides full authority for the filing of a counterclaim in a replevin suit growing out of the same transaction or occurrences. Sections 73 and 74, Code for Civil Procedure, page 377, Laws of Mo. 1943. (4) Verdicts are not required to be in any particular form. They are required only to be certain and to be respond to all issues. When these requirements are met, the verdict is sufficient, however informal or crude may be the language in which it is couched. Weber Implement Automobile Co. v. Ransburg, 274 S.W. 856; United Iron Works v. Twin City Ice Creamery Co., 295 S.W. 109, 317 Mo. 125. (5) Statutes which are in derogation of the common law are to be strictly construed and no statute is to be construed as taking away from a party any right existing under the common law unless such construction is clearly required by the language of the statute. Bostic v. Workman, 31 S.W.2d 218, 224 Mo. App. 645; Bowles v. Abrahams, 65 Mo. App. 10; State ex rel v. McQuillan, 152 S.W. 347, 246 Mo. 517, 534; Perry v. Strawbridge, 108 S.W. 641, 209 Mo. 621, 635.
This is an action for the replevin of an automobile truck and equipment. The plaintiffs gave bond, the property was turned over to them by the sheriff and they were in possession of the same at the time of the trial. The petition alleges the value of the property sought to be recovered to be $350 and asks damages in the sum of $100 for its wrongful detention. Defendant filed a general denial and also a counterclaim wherein he sought to recover $245.70 for labor and materials furnished in repairing the truck in controversy. He did not ask for the enforcement of a lien. There was a verdict and judgment against the plaintiffs on their cause of action and in favor of the defendant, on his counterclaim, in the sum of $245.70. Plaintiffs have appealed.
Plaintiffs are brothers engaged in the cleaning, laundry and dying business. Defendant is engaged in the blacksmith and welding business. Plaintiffs were the owners of the truck in question which had been damaged in a wreck and needed repairing. The plaintiff, E.A. McCluskey, entered into an oral agreement with the defendant to repair the damaged truck. According to the evidence of the plaintiffs the cost of the labor and materials was not to exceed $300, which was to include the wages of a helper, whom the plaintiffs were to pay. According to the evidence of the defendant, "there wasn't anything said about an agreement on the price".
The damaged truck was delivered to defendant's place of business and, after it had been there for some time, a controversy arose between the said McCluskey and the defendant regarding the amount to be paid by plaintiffs for the repairs on the truck. At this time the work on the truck had not been completed. Plaintiffs had paid the defendant the sum of $140 and to his helper $124.50. There was no written order or memorandum given defendant by the plaintiffs for the work. As a result of the controversy regarding the amount to be paid for the repairs, plaintiffs contending that defendant had been overpaid for the work actually done and the defendant contending that the plaintiffs owed him a balance of $245.70 for work previously done, plaintiffs instituted this action in the circuit court seeking to recover possession of the truck and equipment. According to plaintiffs' evidence the truck is worth $2500 or $3500.
It is insisted by the plaintiffs that the court erred in overruling their demurrer to defendants counterclaim, their motion for a directed verdict, and in the giving of certain instructions on behalf of the defendant and the refusal of instructions on behalf of the plaintiffs, for the reason that defendant was not entitled to recover his counterclaim because he has no lien upon the truck and the equipment, and asked for none in his pleadings; that he has no lien because there was no written memorandum of the work and the materials furnished or to be furnished. Defendant insists that he has such a lien.
In support of this contention plaintiffs cite section 3608 Revised Statutes Missouri 1939, which provides:
"Every person who shall keep or store any vehicle, part of equipment thereof, shall, for the amount due therefor, have a lien; and every person who furnishes labor or material on any vehicle, part or equipment thereof, who shall obtain a written memorandum of the work or material furnished, or to be furnished, signed by the owner of such vehicle, part or equipment thereof, shall have a lien for the amount of such work or material as is ordered or stated in such written memorandum. Such liens shall be on such vehicle, part or equipment thereof, as shall be kept or stored, or be placed in the possession of the person furnishing the labor or material."
We think there is no merit in plaintiffs' contention. This statute, it has been held, does not destroy the common law lien of an artisan who furnishes labor or materials in the repair of a vehicle while he is in the possession of the same. The purpose of the statute is to give the artisan a lien that he did not have at common law, in that, if he secures a written memorandum from the owner stating what is to be done, then the writing will continue the lien after the artisan has parted with its possession, providing a purchaser or other person takes possession with notice of the lien. (Bostic v. Workman, 31 S.W.2d 218.) This is a decision by the Springfield Court of Appeals.
Plaintiffs rely upon the case of Butterworth v. Soltz, 204 S.W. 50, a decision by this court denying a lien. A reading of the opinion in that case shows that the owner of a vehicle, after it had been repaired by the defendant, obtained possession of it. (From all the opinion shows this possession was obtained lawfully.) Afterwards the artisan brought an action in replevin, claiming a lien. The artisan had no lien on the vehicle at common law for he had lost the possession of it. The opinion in that case contains language indicating that this court entertained the view that the statute abrogates the common law in reference to an artisan's lien on vehicles. What was said in that connection was not necessary for the determination of the case in view of the fact that the artisan had lost possession of the vehicle and, therefore, had no lien at common law, and none under the statute, because no written memorandum had been obtained. What was said in that case in reference to the statute repealing the common law is disapproved.
Plaintiffs insist that the matter set forth in the counterclaim constitutes no defense to plaintiffs' cause of action; that no lawful defense was made to the suit and, therefore, it is not a proper subject of a counterclaim. The enforcement of a lien was not sought in the counterclaim but it merely asked judgment for the balance due for the work on the truck. It has been held that a counterclaim that does not tend to defeat or diminish plaintiffs' right of recovery of possession of the property does not lie. (Riss Co. v. Wallace, 171 S.W.2d 641, 643.) However, the new code is more liberal to counterclaimants than the old. (See Sections 73, 74 Laws 1943, p. 377.)
Section 73 provides that a counterclaim "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim". Section 74 provides: "A counterclaim may or may not diminish or defeat recovery sought by opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party." (See Laws of 1943 p. 377.)
Defendant's counterclaim arises out of the transaction or occurrence that is the subject matter of plaintiffs' claim, (McCormick Harvesting Co. v. Hill, 104 Mo. App. 544; DeFord v. Hutchinson, 25 P. 641 (Ks.); Judah v. The Trustees of the Vincennes University, 16 Ind. 56; Sekor v. Anderson, 212 Pac. (Wash.) 578) and, under the provisions of section 74, the matter set up in the counterclaim need not diminish or defeat plaintiffs' recovery and the counterclaim may claim relief different in kind from that sought by the opposing party. We think the counterclaim was a proper one in this case.
It is unnecessary for us to decide whether the matter set forth in the counterclaim is sufficient to authorize the enforcement of defendant's lien because it is permissible, under the general denial, to show that the plaintiff is not entitled to the possession of the vehicle replevined because of the lien. (Anthony v. Carp, 90 Mo. App. 387, 393, 394; Young v. Glasscock, 79 Mo. App. 574.) It is insisted by the plaintiffs that the court erred in the giving of an instruction offered by the defendant, which told the jury that, under the facts and cimcumstances submitted in the instruction, if they found for the defendant "then your verdict should be for the defendant on his counterclaim in such amount as you find and believe from the evidence is due defendant for his work . . . not exceeding a sum in the amount of $245.70."
It is claimed that the instruction is defective, in that, it does not give plaintiffs credit for the sums of money already paid by them to defendant and his helper, amounting to $264.50, as the instruction has the jury find for the defendant. . . . "in such amount" as "is due defendant".
There was an instruction given on behalf of the plaintiffs which told the jury that if they found for the defendant upon his counterclaim, in determining the amount, they should take into consideration "the payments that have already been made to defendant by the plaintiffs".
We think the jury, in reading the two instructions together, would not be misled into believing that the plaintiffs are not entitled to the credit claimed by them. Defendant's evidence shows that, after giving credit to the plaintiffs for the amounts claimed, there was a balance due him of $245.70, which was the amount mentioned in defendant's instruction and found, by the jury, to be due him.
In order to prove the items of account set forth in his counterclaim defendant introduced in evidence a statement of account, which was taken by defendant's bookkeeper from his ledger book. The ledger was in existence at the time of the trial. It is insisted that this statement was improperly admitted in evidence, but we fail to find that any objection was made to its introduction, so this point is ruled against plaintiffs.
The verdict reads: "We the jury find the issues for Defendant on his counterclaim and against the plaintiff on his petition, and we find for the Defendant on his counterclaim and against the plaintiff in the sum and amount of $245.70 Dollars." The judgment is in the language of the verdict.
It is insisted that the verdict is defective in that it makes a finding against the "plaintiff" and there being two plaintiffs it is impossible to know which of the two the jury meant to find against. No point is made in the motion for a new trial in reference to the verdict being defective. Therefore, it is to be construed by us liberally and will not be held to be void at this stage of the proceedings for mere defects. [Clark v. Porter, 90 Mo. App. 143; Kamerick v. Castleman, 29 Mo. App. 658; Welch-Sandler Cement Co. v. Mullins, 31 S.W.2d 86.] The case was presented jointly by plaintiffs and there was no contention in the trial court, and none here, that there could be a verdict against one plaintiff and not the other. The respective rights of the plaintiffs were identical. Under the circumstances, to find against "plaintiff" instead of "plaintiffs" will be treated as a clerical error. [Borkowsky v. Janicke, 170 Mo. App. 610.]
It is insisted that the verdict is not responsive to the issues.
Ordinarily when a lien is claimed on the property by defendant the jury finds the value of his possession. [McDowell v. Hollingsworth, 10 S.W.2d 314, 315; Smith v. Tucker, 200 S.W. 707; Weber Imp. Co. v. Dunard, 181 Mo. App. 658.] The verdict was not attacked in the motion for a new trial on the ground now urged. It is to be liberally construed and the intention of the jury will be arrived at although the verdict may not be in technical form. (Weber Imp. Auto. Co. v. Ransburg, 274 S.W. 856.) Defendant, in his pleadings, did not attempt to have his lien enforced and claimed no special interest in the property. Consequently, it was not necessary for the jury to assess the value of his interest. Under his general denial he was entitled to the unconditional possession of the property, in view of the verdict of the jury.
The verdict, on its face, shows that the jury found that there was a balance due defendant for the work and materials of $245.70 and plaintiffs were not entitled to the possession of the property.
However, the judgment should have adjusted the equities between the parties. Defendant ultimately is not entitled to the unconditional possession of the property but only a lien thereon for the balance found by the jury to be due him. He is entitled to the possession of the property until this lien is discharged and no longer. [Anthony v. Carp, supra, l.c. 393, 394, and cases cited therein.]
It is insisted that the verdict is so against the evidence as to show passion and prejudice on the part of the jury. An examination of the record discloses merely the usual conflicts in the evidence found in the ordinary run of cases and this point is ruled against plaintiffs.
The judgment is reversed and the cause remanded with direction to the court to adjust the equities between the parties. In this case the judgment should be for the defendant in the sum of $245.70 or for the return of the property until this sum is paid at the option of the defendant. [Kerman v. Leepre, 172 Mo. App. 286.]
All concur.