SCOTT ET AL. v. DELAHUNT ET AL

9 Citing cases

  1. Wolfman Co., Inc. v. Eisenberg

    116 Misc. 43 (N.Y. Misc. 1921)   Cited 4 times

    It is not seriously disputed that a prior valid filed chattel mortgage is inferior to the garageman's lien for repairs made at the request or with the consent of the mortgagor. Tucker v. Werner, 2 Misc. 193; Scott v. Delahunt, 65 N.Y. 128. It is contended, however, that a different rule holds as to the garageman's lien for storage and for supplies such as gasoline and oil, and that in the latter case his lien is inferior to the lien of a prior valid filed mortgage. It is true that the decisions are confusing and seemingly inconsistent.

  2. Personal Finance Company v. Flecknoe

    24 N.E.2d 694 (Ind. 1940)   Cited 8 times

    This would be true without considering the fact that the vessel was being used to earn funds with which to pay the mortgage debt. Later cases extended the exception to cover cases where the security itself was not endangered by the need for repairs but where the only ground for the implied consent of the mortgagee was based on the fact that the mortgaged property was used in some manner in earning funds with which to pay the mortgage debt. In Scott v. Delahunt (1875), 65 N.Y. 128, the court held that the lien of a shipwright for repairing a canal boat was superior to the lien of a mortgage recorded prior to the making of the repairs where the owner of the ship continued to operate it as "a source of profit and a means of earning wherewithal to pay off the mortgage debt." The exception has also been held to apply to a buggy used by a physician in calling on his patients, Drummond Carriage Co. v. Mills (1898), 54 Neb. 417, and to a hack being used to carry passengers for hire. Small v. Robinson (1879), 69 Me. 425, 31 Am. Rep. 299; Hammond v. Danielson (1879), 126 Mass. 294.

  3. Ellis Motor Co. Hibbler

    121 So. 47 (Ala. 1929)   Cited 10 times

    A common-law mechanic's or repairman's lien takes precedence of an existing chattel mortgage or retention title contract. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N.W. 966, 40 L.R.A. 761, 69 Am. St. Rep. 719; Watts v. Sweeney, 127 Ind. 116, 26 N.E. 680, 22 Am. St. Rep. 615; Hammond v. Danielson, 126 Mass. 294; Guaranty S.C. v. Brophy, 243 Mass. 597, 137 N.E. 751; Scott v. Delahunt, 65 N.Y. 128; Ohio Fin. Co. v. Middleton, 14 Ohio App. 43; Rehm v. Viall, 185 Ill. App. 425; Roberts v. Bank, 25 Ont. 194. A common-law lien attaches to the property itself without reference to ownership, and overrides all other rights in the property. Sullivan v. Clifton, 55 N.J. Law, 324, 26 A. 964, 20 L.R.A. 719, 39 Am. St. Rep. 652; Shaw v. Webb, 131 Tenn. 173, 174 S.W. 273, L.R.A. 1915D, 1141, Ann. Cas. 1916A, 626; Chapman v. Bank, 98 Ala. 528, 13 So. 764, 22 L.R.A. 78. Where conditional seller expressly authorizes the purchaser to make repairs, such authorization inures to the benefit of the repairman, making his lien superior to the selller's contract.

  4. Barlow v. Ruthenberg

    199 N.W. 39 (N.D. 1924)

    "It may be stated as a rule, that a mortgagor of a vessel who is allowed to remain in possession has an implied authority to create repairs which will take priority of the mortgage." Jones, Chat. Mortg. ยง 535; Beall v. White, 94 U.S. 382; Scott v. Delahunt, 65 N.Y. 128. "Where property is to be retained and used by the mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage, where it is property liable to repairs, that it is to be kept in repair, and when the property is machinery, or property of a character which renders it necessary to entrust it to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made, and as such necessary repairs are for the betterment of the property, and add to its value, to the gain of the mortgagee, the common-law lien of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgage.

  5. Myers v. Auto Company

    121 A. 916 (Md. 1923)   Cited 10 times

    and used by the mortgagor for a long 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 a character which renders it necessary to entrust it to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and add to its value to the gain of the mortgagee, the common law lien in favor of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgagee." In further support of our conclusion, we may refer to Reeves v. Russell, 28 N.D. 265, L.R.A. 1915D, 1149, and note; Drummond Carriage Co. v. Mills, 54 Neb. 417, 40 L.R.A. 761; Broom v. Dale, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146; Keene v. Thomas (1905), 1 K.B. 136; Scott v. Delahunt, 65 N.Y. 128; Wolfman Co. v. Eisenberg, 190 N.Y. Supp. 259; Terminal Taxi Corp. v. O'Rourke, 193 N.Y. Supp. 238; 6 C.J., 1138; 3 R.C.L., 133-4; 1 Jones, Liens, 3rd ed., sec. 744. The brief for the appellant cites the cases of Meyers v. Bratespiece, 174 Pa. 119; Hollingsworth v. Dow, 19 Pick. 228; Small v. Robinson, 69 Me. 425; and Baughman Automobile Co. v. Emanuel, 137 Ga. 354, 38 L.R.A. (N.S.), 97. The first two cases in this group are readily distinguishable from the case at bar, and any analogy which the other two cases may bear to the one now before us does not enable us to apply to it the theory upon which they were decided.

  6. Texas Bank Trust Co. of Beaumont v. Smith

    108 Tex. 265 (Tex. 1917)   Cited 13 times

    For this reason the mortgage lien, though prior in time, is made subordinate. Scott v. Delahunt, 65 N.Y. 128; Provost v. Wilcox, 17 Ohio St. 359; Hammond v. Danielson, 126 Mass. 294. For a stronger reason should the lien conferred by the statute under consideration be held superior to a prior mortgage lien.

  7. Thourot v. Delahaye Import Co.

    69 Misc. 351 (N.Y. App. Term 1910)   Cited 4 times

    McFarland v. Wheeler, supra. The appellant relies on the case of Scott v. Delahunt, 65 N.Y. 128, and similar cases, but these authorities are in no way contrary to the views here expressed. In Scott v. Delahunt, supra, the court held that a shipwright, to whom a boat had been delivered by the owner, has a lien thereon for necessary repairs, while it remains in his possession, which is superior to that of a mortgagee.

  8. Gluckman v. Kleiman

    3 Misc. 97 (N.Y. Misc. 1893)

    It is indisputable that an artisan, who by his skill and labor enhances the value of the goods of another, has a lien for his agreed or reasonable charges, which extends to all the goods delivered to him under one contract ( Morgan v. Congdon, 4 N.Y. 552; Schmidt v. Blood, 9 Wend. 268; Moore v. Hitchcock, 4 id. 292), and that the return of part of the goods does not impair the lien for the labor bestowed thereon as against the goods remaining. Wiles Laundering Co. v. Hahlo, 105 N.Y. 234; 3 Pars. Cont. 257. But to enable the artisan to acquire the lien it must appear that the person from whom he has obtained possession of the goods was authorized to dispose of them for that purpose (3 Pars. Cont. 242), either as owner, or with the owner's consent, express or implied. Scott v. Delahunt, 65 N.Y. 128; White v. Smith, 43 Am. Rep. 347; Small v. Robinson, 31 id. 299; Sargent v. Usher, 20 id. 208; Gilson v. Gwinn, 107 Mass. 126. A mere bailee for hire has no such authority. Small v. Robinson, 31 Am. Rep. 299; 4 Lawson's Rights, Remedies Practice, 2983, ยง 1742.

  9. Tucker v. Werner

    2 Misc. 193 (N.Y. Misc. 1892)   Cited 3 times

    ile the mortgage provides that the mortgaged property is in a certain barn, and that the same is not to be removed therefrom without the written consent of plaintiff, yet, it appearing in the agreed statement of facts that Morgenstern was to have the possession and use of the buggy, the case must be disposed of upon the theory that such use was with plaintiff's knowledge and consent; he thus clothed Morgenstern with authority and dominion over the property, coupled with an apparent ownership. It may also be assumed, from the nature of the repairs as shown by the bill, and the character of the property in constant use, that such repairs were necessary, useful for its preservation, and enhanced its value. If we are right in these inferences, we have a case where the mortgagee authorized a use of the property, clothed the mortgagor with apparent ownership, and where the work done has added value to the property. This, as I view the case, brings it within the principle of the decision in Scott v. Delahunt, 65 N.Y. 128. It is there laid down as a rule that all mechanics have a lien for labor bestowed, so long as they retain possession of the article, and that where a mortgagee allows another to use the property, and continue in the apparent ownership, prosecuting his business, which necessitates the use of the article, and where such use was contemplated, that such relation raises the implication that the mortgagor may take all necessary steps to preserve the property, and render it fit for use, that under the circumstances necessary repairs are superior to the lien of the mortgage, as the mortgagee has authorized them. It is true that in that case, the mortgagee knew of the repairs being made, and made no objection thereto, and that the mortgage was then due, but in the discussion of the case, no mention is made of those facts as controlling the decision, but therein it is placed upon the ground that possession, use and apparent ownership were in the mortgagor, and he was prosecuting a business wi