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06/25/87 OZARK FINANCIAL SERVICES v. LONNIE TURNER

June 25, 1987

OZARK FINANCIAL SERVICES, A DIVISION OF OZARK KENWORTH, INC., PLAINTIFF-APPELLANT,
v.
LONNIE TURNER AND PATSY TURNER, DEFENDANTS, V. PETE & SONS GARAGE, INC., INTERVENORS-RESPONDENTS



APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY, MISSOURI, Honorable John C. Holstein, Judge.

On Motion for Rehearing August 5, 1987; Motion for Rehearing Overruled August 6, 1987. Application to Supreme Court for Transfer Denied September 15, 1987.

Almon H. Maus, Judge, Prewitt, P.j., Hogan and Flanigan, JJ. concur.

The opinion of the court was delivered by: Maus

ALMON H. MAUS, JUDGE

This action commenced by appellant Ozark Financial Services filing a petition to replevin a tractor truck unit from the possession of Lonnie Turner and Patsy Turner. The petition alleged the appellant was entitled to possession of the vehicle by reason of the Turners' default under a security agreement-retail installment contract dated April 25, 1985. Pete & Sons Garage, Inc., was permitted to intervene and assert an artisan's lien for labor and material furnished in repairing the vehicle. The Disposition of the case by the circuit court included a judgment in favor of the intervenor and against appellant in the amount of $2,693.91. The appellant seeks the reversal of that judgment.

The petition of intervenor was in two counts. Count I sought recovery upon the basis of a common law artisan's lien. Count II asserted a statutory lien under § 430.020. The circuit court entered judgment in favor of intervenor upon Count I. The appellant contends this was error. It also contends the circuit court correctly dismissed Count II. The following is a brief summary of the salient facts.

The issue date of the title to the vehicle was October 4, 1984. Appellant was shown as a lienholder. The security agreement under which appellant obtained possession was dated April 25, 1985. The repairs were made in June, 1985. When the repairs were completed, the vehicle was returned to the possession of the Turners. It was returned upon a verbal agreement that if the Turners could not pay for the repairs, they would return the vehicle to the intervenor. The vehicle remained in the possession of and was used by the Turners until the latter part of November, 1985. It was then returned to intervenor. At that time, a writing was prepared reciting in lay language the verbal agreement referred to above. Under a writ of replevin against the Turners, the sheriff took the vehicle from the intervenor and delivered it to appellant. See State ex rel. Rueseler Motor Co. v. Klaus, 263 S.W.2d 71 (Mo.App. 1953).

In the circuit court, as in this court, it was appellant's position intervenor lost its common law artisan's lien when it surrendered possession of the vehicle to the Turners. Intervenor contended its lien was not lost because the vehicle was delivered to the Turners subject to the condition of the verbal agreement. Intervenor relied upon the following expression. "As a general rule a lien dependent on possession is waived or lost by the lienholder voluntarily and unconditionally parting with possession or control of the property to which it attaches." Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 951 (Mo. 1953) (emphasis added). This language is found as dictum in several Missouri cases. See Jackson v. Kusmer, 411 S.W.2d 257 (Mo.App. 1967).

However, the general rule applicable to the common law lien has been stated as follows. "Being dependent upon possession, the common law lien is lost if the lienholder voluntarily parts with possession of the vehicle." Lamke v. Lynn, 680 S.W.2d 285, 288 (Mo.App. 1984). Also see Jordan v. Davis, 538 S.W.2d 595 (Mo.App. 1976); Davis v. Nash Central Motors, 332 S.W.2d 475 (Mo.App. 1960); Gale and Company v. Hooper, 323 S.W.2d 824 (Mo.App. 1959); State ex rel. Rueseler Motor Co. v. Klaus, supra; Bostic v. Workman, 224 Mo. App.645, 31 S.W.2d 218 (1930). That rule is followed in many jurisdictions. Parks v. "Mr. Ford", 386 F.Supp. 1251 (D.C.Pa. 1974); Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975); Jess H. Young and Son, Inc. v. Victory Tool and Die Co., 189 Cal.App.2d 824, 11 Cal.Rptr. 516 (1961); Hendrickson & Sons Motor Co. v. Osha, 165 Ind.App. 185, 331 N.E.2d 743 (1975); General Motors Acceptance Corp. v. Colwell Diesel S. & G., Inc., 302 A.2d 595 (Me. 1973), 69 A.L.R.3d 1153 (1976); Patapsco Trailer S. & S., Inc. v. Eastern Freightways, 271 Md. 558, 318 A.2d 817 (1974); Johnson v. Wamble, 205 So.2d 921 (Miss. 1968); Windsor Contracting Corp. v. Budny, 93 N.J.Super. 235, 225 A.2d 596 (App.Div. 1966); Rochester Production Credit Ass'n v. Dickens Bros., Inc., 39 Misc. 847, 242 N.Y.S.2d 309 (1963); Wat Henry Car Leasing v. Oliver, 550 P.2d 995 (Okl.App. 1976); Welcome Home Center v. Central Chevrolet Co., 272 S.C. 166, 249 S.E.2d 896 (1978); Garcia v. Rutledge, 649 S.W.2d 307 (Tex.App.7 Dist. 1982); Atlas Amalgamated, Inc. v. Castillo, 601 S.W.2d 728 (Tex.Civ.App. 1980); Burns v. Miller, 42 Wash.App. 801, 714 P.2d 1190 (1986).

There may be circumstances in which a common law lien is not lost by a brief, temporary conditional use of a vehicle by an owner. See Jackson v. Kusmer, supra; Smith v. Cooper Chevrolet, Inc., 404 So.2d 49 (Ala. 1981); Barbre-Askew Finance v. Thompson, 247 N.C. 143, 100 S.E.2d 381 (1957); Associates Commercial Corp. v. Francisco, 667 S.W.2d 481 (Tenn.App. 1983). However, this case does not require a determination of whether or not in this state there are exceptions to the general rule as stated above. The return of the vehicle for the use of the Turners until it was determined the Turners could not pay for the repairs terminated the common law lien.

Appellants' second point is that the circuit court did not err in dismissing intervenors' Count II asserting a statutory lien. This point is supported by the following argument in appellant's brief.

By its own admission Respondent Garage acknowledges that the conditions for release of the vehicle to Respondent Turner were not reduced to writing until some time after the truck was released to Respondent Turner. Respondent Garage attempted to create a statutory lien, but failed to do so, since the written memorandum (agreement) was obtained long after Respondent Garage had voluntarily given up possession of the vehicle to Respondent Turner. Clearly, then, the Court did not err in determining that Respondent Garage had no statutory line on The 1980 Kenworth K100 tractor truck.

This argument refers to Exhibit C, the agreement prepared when the vehicle was returned to intervenor. The appellant's failure to take cognizance of Exhibits A and B demonstrates the decisiveness of those exhibits.

Exhibit A is dated June 18, 1985. It is on a printed form, a portion of which is obscured by an identification sticker. However, the legend before the signature line begins "I hereby authorize the . . ." The unobscured balance of the legend makes clear it provides an authorization of the repairs shown on that form. Exhibit B is also on a printed form and lists vehicle parts not shown on Exhibit A. Exhibit B is dated June 21, 1985. The exhibits were identified as correctly showing "the work and labor and materials that were expended in repairing the truck." Each exhibit was signed. They total $2,693.91. The exhibits were admitted without objection. The exhibits are a written memorandum of the work or materials furnished or to be furnished upon the vehicle. § 430.020.

Section 430.020 provides for a statutory lien for such labor and material.

The enactment of the statutory artisan lien did not destroy the common law lien of an artisan who furnished labor or material in the repair of a vehicle while he was in possession of it. McCluskey v. DeLong, 239 Mo. App.1026, 198 S.W.2d 673, 675 (1946). Being dependent upon possession, the common law lien is lost if the lienholder voluntarily parts with possession of the vehicle. State ex rel. Rueseler Motor Co. v. Klaus, 263 S.W.2d 71, 72 (Mo.App. 1953). However, the purpose of Sections 430.020 and 430.040 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 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 claim.

Lamke v. Lynn, supra, at 288. Also see Mack Motor Truck Corporation v. Wolfe, 303 S.W.2d 697 (Mo.App. 1957); State ex rel. Rueseler Motor Co. v. Klaus, supra; Bostic v. Workman, supra. The general subject is discussed in Lambert, The Liens Available To A Garage Man, 30 U.Kan.C.L.Rev. 3 (1962).

To determine the priority of the statutory lien with respect to an existing security interest, § 430.020 must be read with § 430.040. Jackson v. Kusmer, ...


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