Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D. Goldmann, S.j.a.d. (dissenting).
Defendants appeal from a judgment awarding $5003.91 as damages against them and in favor of plaintiff Windsor Contracting Corp. and denying their claims against Windsor.
Plaintiffs sued in replevin for possession of 67 truck tires, inner tubes and tire rims, as well as other specified wheel locks, nuts, wheel studs and 13 unmounted used truck tires, allegedly wrongfully taken by defendants on or about August 29, 1964. They also sought damages for the value of the tires and other items, and also damages for the detention. Defendants admitted the taking and claimed legal justification for so doing under the Garage Keepers' Lien Act, N.J.S. 2A:44-21. They alleged that plaintiffs owed them $2,423.24 for tires and automobile accessories sold and serviced. Defendants sought judgment for possession of the chattels involved, for the debt due and for damages occasioned by the repossession and storage.
We understand that plaintiffs filed a replevin bond and were awarded possession of the articles in question a few weeks after the taking by defendants and pending the trial.
In the pretrial order of June 9, 1965, it was provided that the parties would stipulate: "Sale of said tires, goods and chattels by defendants; that there is a balance due defendants by plaintiffs of $2,423.24 as of July 2, 1964; and that certain tires, goods and chattels were repossessed by their employees on or about August 29, 1964." The pretrial order framed the issues in the form of the following two questions:
(1) Does a garageman have the right to take possession of an entire vehicle part of which consists of goods and chattels sold by the garageman or only the items sold?
(2) Does the garageman's lien extend to equipment not sold by the garageman?
As hereinafter indicated, the pretrial order was poorly expressed and the questions posed were vague, inadequate and not specific enough, in the light of the facts of this case, as became manifest at the trial.
The case was tried without a jury on August 3, 1965. The following facts were developed. Plaintiff Shady Rest Trucking Co., Inc., had purchased some truck tires from defendants, had other tires recapped by them and purchased batteries and miscellaneous items for its trucks. Shady Rest owed defendants $2,423.24 for these items. Defendants made no sales to and rendered no services directly for plaintiff Windsor, a separate trucking company. In fact, they would not extend credit to Windsor because of prior dealings.
Shady Rest and Windsor occupied the same premises and there was a working arrangement between them. Windsor and Shady Rest had the same president, Joseph T. Hayes, and Windsor leased some trucks owned by Shady Rest. Although Windsor was unable to get any credit from defendants and Shady Rest enjoyed a limited credit, some tires sold to or recapped for and billed to Shady Rest were placed on trucks owned by Windsor. There was testimony that Shady Rest purchased the tires and then sold them to Windsor for use on Windsor's trucks.
However, an inference could be drawn from the record that Windsor was using the credit of Shady Rest to acquire for the Windsor truck tires which Windsor itself could not purchase on credit from defendants. In fact, Windsor's officer, Lawrence E. Pecan, testified that defendants knew that, although the tires and accessories were being charged to Shady Rest, they were being used by Windsor. Defendants denied such knowledge.
Budny testified that, upon learning of the recent formation of Windsor, he went to the joint place of business to get the money due his firm and there spoke to Hayes, who
was then president of both corporations. Hayes told him, "Larry Pecan took over that responsibility now, it is his job to pay your bill." Hayes led Budny to believe that there was a "sort of partnership" between the two corporations and that "Mr. Pecan was going to be total boss of the operation." As a result, Budny demanded payment from Pecan on several occasions, but received no payment. Budny testified that Hayes and Pecan came to his office and requested a further credit extension, which he refused. In all events, Budny stated that he was made to feel that Windsor could be looked to for payment, despite the fact that the book account showed Shady Rest as the debtor.
Unwilling to wait any longer for payment, defendant Budny decided to take the law into his own hands. About 6 P.M. on August 29, 1964, a Saturday night, defendant Budny went to the premises jointly occupied by plaintiffs to look for tires recently sold to Shady Rest. He found some on that company's trucks and he found on Windsor trucks one or two, and in some instances three, tires that had been sold to Shady Rest. He then instructed his son to get a fleet of trucks, and men, and go down that same night to the Shady Rest-Windsor yard and there strip from the trucks of both companies every tire from any truck on which a Budny sold tire could be found, and to take enough tires from which to realize the $2,423.24 owed to him. The son and crew did this and returned somewhere between 9 and 10 P.M. They brought back some 65 tires. Some of these had been sold by defendants to Shady Rest and not paid for. But they also took from Windsor's trucks some 43 tires, tubes and rims, which had not been sold or serviced by defendants but which Windsor had purchased from other sources.
This replevin suit followed when defendants refused to turn over to plaintiffs the seized tires and other items upon demand made. The trial court ruled as a matter of law that defendants' seizure of Windsor's 43 tires, tubes and rims, was improper and not within the purview of the Garage Keepers' Lien Act. N.J.S. 2A:44-21. The matter was set
down for a hearing as to damages only. As a result of that hearing, plaintiff Windsor was awarded damages against defendants in the sum of $5,003.91. Defendants were awarded damages against Shady Rest alone in the sum of $2,423.24. A motion by defendants to reopen the judgment for further proofs, upon the basis of affidavits by defendant Budny and Hayes, president of Shady Rest, was denied. This appeal by defendants followed.
We agree with the trial court that defendants had no legal right to remove from Windsor's trucks the 43 tires, tubes, rims and accessory equipment, which Windsor had purchased from others, merely because one or two or three other tires, sold by defendants to Shady Rest and not paid for, were found on Windsor's trucks by virtue of some business arrangement between Shady Rest and Windsor.
There is no merit in defendants' argument that they had a common law artificer's lien on Windsor's trucks and were exercising their rights thereunder. The factual situation herein would not give rise to such a common law lien against Windsor's trucks. 7A Blashfield, Cyclopedia of Automobile Law and Practice, § 5099 (1950); Brown, Personal Property, § 108, at p. 470 (1936). Neither would the common law artificer's lien continue once the artisan surrendered possession of the chattel whose value he had enhanced by his services. The common law lien was merely a right to retain possession. It would not apply or persist after surrender of possession in a case such as this.
Defendants claim justification under the statutory Garage Keepers' Lien Act, N.J.S. 2A:44-21, which provides:
"A garage keeper who shall * * * repair a motor vehicle or furnish gasoline, accessories or other supplies therefor, * * * shall have a lien upon the motor vehicle or any part thereof for the sum due * * * and may, without process of law, detain the same at any time it is ...