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Source: All England Law Reports Project ID: None
All England Law Reports/1946/Volume 2 /Bowmaker Ltd v Wycombe Motors Ltd -  2 All ER 113  2 All ER 113
Bowmaker Ltd v Wycombe Motors Ltd
KING'S BENCH DIVISION LORD GODDARD LCJ, HUMPHREYS AND SINGLETON JJ 30 MAY 1946 Lien - Particular - Motor repairer - Motor car let on hire-purchase agreement - Repairs at request of hirer after determination of agreement - No lien against owner. Hire-purchase - Motor car - Repairs at request of hirer after determination of agreement - No lien against owner. By a hire-purchase agreement, dated 1 August 1945, the respondents let a motor car to one P, on the terms, inter alia, that P was to keep the vehicle in good order, repair and condition at his own expense, and was not to be deemed to have any authority to pledge the owner's credit for repair of the vehicle or to create a lien thereon in respect of such repairs. On 12 December 1945, P being then in arrear, the respondents, in accordance with the agreement, terminated the agreement by letter, and on 19 December 1945, issued a writ against P for the arrears and claiming the return of the vehicle. On 27 December 1945, P, who had disregarded the notice, met with an accident and left the car on that date at the appellants' garage for repairs. On 30 January 1946, judgment was obtained against P by the respondents, who obtained leave to proceed, and on 1 March 1946, the sheriff levied execution at the appellants' garage in respect of that judgment. The appellants claimed an artificer's lien for the amount of the repairs, and an interpleader by the sheriff was filed and the hearing of the issue took place. The master decided that the lien could not prevail:-Held - The authority to the hirer, P, had been duly determined under the terms of the agreement, and at the time when he took the car to the appellant's garage, he had no more right to the car than a thief would have; in those circumstances the appellants could not establish a lien on the car against the owners, who were no parties to placing it with them for repairs. Per Lord Goddard LCJ: An arrangement between the owner and the hirer that the hirer shall not be entitled to create a lien does not affect the repairer. A repairer has a lien although the owner has purported to limit the hirer's authority to create a lien in that way. Once an artificer exercises his art upon a chattel, the law gives him a lien upon that chattel, which he can exercise, against the owner of the chattel, if the owner of the chattel is the person who has placed the chattel with him or has authorised another person to place the chattel with him. Notes This case is of importance to garage proprietors and to those letting out cars on hire-purchase terms. It is clear on authority that the common law lien arising on execution of repairs to a car is only enforceable against the owner if the hire purchaser had authority to send the car for repair, and that such authority is normally implied while the hirer is in lawful possession of the car. When the hire purchase agreement has terminated, however, the possession is against the will of the owner and it is held that a repairer cannot
exercise a lien for repairs which the hirer has no longer any authority to have executed. For Particular Lien for Work Done, see Halsbury, Hailsham Edn, Vol 20, pp 563-566, para 711-713; and for Cases, see Digest, Vol 32, pp 247-252, Nos 311-381. at 114 Cases referred to in judgments Buxton v Baughan (1834), 6 C & P 674, 32 Digest 220, 48. Singer Manufacturing Co v London & South Western Ry Co  1 QB 833, 8 Digest 220, 1398, 63 LJQB 411, 70 LT 172. Green v All Motors Ltd  1 KB 625, 3 Digest 95, 255, 86 LJKB 590, 116 LT 189. Albemarle Supply Co Ltd v Hind & Co  1 KB 307, Digest Supp, 97 LJKB 25, 138 LT 102. Keene v Thomas  1 KB 136, 3 Digest 95, 254, 74 LJKB 21, 92 LT 19. Appeal Appeal by the claimant from an order of a master on an interpleader issue which raised the question as to whether a repairer had an artificer's lien for the price of repairs on a motor car, let under a hire-purchase agreement which, on default by the hirer, had been duly determined. The facts are fully set out in the judgment of Lord Goddard LCJ. Stephen Chapman for the appellants. A C Longland KC and B B Stenham for the respondents. 30 May 1946. The following judgments were delivered.
LORD GODDARD LCJ. This is an appeal from a decision of a master given on an interpleader issue which arises in this way: On 1 August 1945, the plaintiffs in the issue, Bowmakers, who are people who finance hire purchase agreements, and who for this purpose it is agreed were the owners of a particular motor car, entered into a hire purchase agreement with a man called Payne, under which they let to him on hire with a view to his ultimate purchase a certain motor car upon the terms of an agreement, one of which was that the hirer was:
''To keep the vehicle in good order, repair and condition, and to be responsible for all risks of whatsoever kind, fire included. If and whenever any repairs are required they shall be carried out at the expense of the hirer provided that the hirer shall not have or be deemed to have any authority to pledge the owner's credit for the repair of the vehicle or to create a lien thereon in respect of such repairs or for any other purpose or thing whatsoever.''
It was also provided that if the hirer made any default the owners could forthwith retake possession of the vehicle and terminate the agreement. Then there was a further provision:
''A demand by the owners for the return of the vehicle given orally or by their duly appointed representative or in writing left at or sent by prepaid post addressed to the hirer at his last known address or the address set out in the preamble to this agreement shall be sufficient notice of termination of this agreement by the owners.''
On 1 December 1945, £43, part of the hire, was in arrear, and on 12 December 1945, the plaintiffs terminated the agreement by letter of that date, and on 19 December they issued a writ against Payne for the arrears, claiming the return of the vehicle. On 27 December Payne, who had disregarded the notice that was given to him and was wrongly at that date in possession of the vehicle, had met with an accident and left the car on this date at the defendants' garage for repairs, and the repairs amounted to £115 15s Od. On 30 January 1946, judgment was obtained against Payne by the plaintiffs in the action, who obtained leave to proceed, and on 1 March the sheriff of Buckingham levied execution at the defendants' garage in respect of that judgment. They claimed to hold the car on an artificer's lien for the amount of the repairs, and an interpleader by the sheriff was filed, and the hearing of the issue took place. The master decided that the lien could not prevail, and in my opinion he was clearly right. The position was that at the date when this car was left at the garage, Payne had no right or title to the car whatsoever; he was holding the car against the will of the true owners. First of all, let us see what the position is with regard to liens generally created on the property of what I may call third persons. The first case to which I may refer is the well-known decision in Buxton v Baughan, in which the facts were these:
''A. put a phaeton into the possession of M. for him to paint it and paid M. beforehand for the painting. M. never painted it, but placed it on the premises of B., where it stood three months:--Held: B. had no lien on the phaeton for his charge for the standing of it, unless the jury were satisfied that M. placed it there by the authority of A.''
Alderson, B summing up to the jury, stated the law in this way, (6 C & P 674 at p 675): at 115
'The defendant cannot set up a bargain made by Mackenzie, unless Mackenzie had authority from the plaintiff to make such a bargain. If you trust your goods into a man's possession, and he makes a bargain about them without your authority, you are not bound by that bargain, and may reclaim the goods. The fact that the plaintiff's servant was three months before he could find out where the phaeton was does not look much like the plaintiff having authorised a bargain to be made for the defendant to keep it at hire. A man has no right to keep my property, and charge for the standing of it, unless there was a previous bargain between him and me, or between him and some agent authorised by me.'
So the lien in that case failed. With regard to hire purchase agreements, the law has been extended, as I understand it, to this extent, that if the owner of a chattel lets it to another on a hire purchase agreement, he puts the hirer into possession of the vehicle with authority to use it as though it were his own during the time that the hiring exists, and to use it in all manners necessary for his enjoyment. Accordingly, he may deal with it in such ways as are necessary for its use and enjoyment. In Singer Manufacturing Co v London & South Western Ry Co, a man who was in possession under a hire purchase agreement of a Singer sewing machine placed it in a railway cloak room during the time that the hiring was in existence and, the hiring having come to an end, the owners of the machine claimed it from the railway company, who set up a warehousemen's lien, and Collins J in giving his judgment in that case put it in this way ( 1 QB 833 at p 837):
'I think in this case the lien may also be rested on another ground; and that is, that the person who deposited this machine was, as between himself and the owner of it, entitled to the possession of it at the time he deposited it. He was entitled to it under a contract of hire, which gave him the right to use it, I presume, for all reasonable purposes incident to such a contract, and among them, I take it, he acquired the right to take the machine with him if he travelled, and to deposit it in a cloakroom if he required to do so. In the course of that reasonable user of the machine, and before the contract of bailment was determined, he gave rights to the railway company in respect of the custody of it. I think those rights must be good against the owners of the machine, who had not determined the hire purchase agreement at the time that those rights were acquired by the railway company.'
So, too, it has been held in the cases to which our attention has been called, more especially Green v All Motors Ltd and Albemarle Supply Co Ltd v Hind & Co, that where it is necessary that a motor car should be kept in running condition and repair during the time a hire purchase agreement is current and valid, the hirer has a right to take it and get it repaired and, if he takes it and gets it repaired, the repairer can exercise an artificer's lien upon it because at the time when the motor car was left with him, he, the hirer, had got the right, whether you call it by implied authority or by legitimate authority, to use that car in all reasonable ways, and among those ways is a right to get the car repaired and kept in running order. Therefore he is placing it with the repairer with the consent of the owner and the artificer's lien on that account will prevail against the owner. But these cases have also held, and quite understandably, that an arrangement between the owner and the hirer that the hirer shall not be entitled to create a lien, does not affect the repairer. A repairer has a lien although the owner has purported to limit the hirer's authority to create a lien in that way. That seems to me to depend upon this: Once an artificer exercises his art upon a chattel, the law gives the artificer a lien upon that chattel, which he can exercise, against the owner of the chattel, if the owner of the chattel is the person who has placed the goods with him or has authorised another person to place the goods with him. If I send my servant with my chattel to get it repaired, the artificer will get the lien which the law gives him on that chattel although I may have told my servant that he is not to create a lien. The fact is that the lien arises by operation of law because the work has been done upon it. In this case, the authority to the hirer had been duly determined under the terms of the agreement, and at the time when the hirer took the car to Wycombe Motors Ltd he had no more right to the car than a thief would have. He had been placed in possession of the car. The consent of the owner of the car to the bailment had ceased, and if the hirer converted it to his own use by selling it, it seems to me that he would have been guilty of larceny, though, as has been at 116 pointed out during the course of the argument, every time he drove the car he was driving it without the consent of the owner and was committing an offence under the Road Traffic Act. In these circumstances, it seems to me impossible to say that Wycombe Motors Ltd can establish and insist on a lien against the owner of the car, who was no party to placing it with them, and indeed it was placed with them against their rights. The case is no doubt of some importance to people who finance hire purchase transactions or let out cars on hire purchase terms, and it is also of importance to garage proprietors who do repairs. It is well-known that a very large number of cars are on hire purchase at the present time. It is also very well-known, unfortunately, that a great many cars are stolen at the present time; and it is one of the risks which a garage proprietor who does repairs--one of the risks of his trade--that he may find either because a hire purchase agreement has been terminated or for some other reason, whether by reason of a theft or not, the person who brings the car has no right to deposit the car for repairs; and he may find he has no lien and cannot enforce his rights against the car or recover the money from the thief or person in illegal possession of the car. It seems to me impossible to hold that the common law lien can have prevailed against the owner of the car
when the person who placed the car for repairs had no right to do so. In my opinion, the Master's decision was right, and this appeal fails.
HUMPHREYS J. I agree, and it is only because the case has been said to be of some importance that I add that in my opinion the proposition contended for by counsel for the appellants has been decided in each of several authorities all of which are binding upon us. I turn particularly to the judgment of Bankes LJ in Green v All Motors Ltd, in which he observed as follows ( 1 KB 625, at p 632):
'In Keene v. Thomas the point, as stated by LORD ALVERSTONE, C.J., was "whether the man who made the bargain with the repairer had authority from the plaintiff to make such a bargain." That is the first point to be decided. The question, therefore, is whether on Oct. 31, when Price [for whose name Payne may be substituted] made the bargain with the defendants for the repair of the motor car, he had authority from the plaintiff to do so. In my opinion, he clearly had authority unless the plaintiff had determined the hire purchase agreement before that date.'
"Agreeing with that view, Scrutton LJ observed (ibid, at p 633):
'Accordingly the hirer had by contract a duty as well as a right, until the hire was terminated, to have the car repaired, with the ordinary consequences of giving the repairer a lien on the car for the proper cost of the repairs.'
He then posed the question for decision in that case as being:
'Had the bailment been determined when the order to do the repairs was given by the hirer?'
On the facts of this case it seems to me to be unarguable that at the time when the order to do the repairs was given, there was no authority in Payne to give any such order.
SINGLETON J. I am of the same opinion. Under the hire purchase agreement the owners had power in certain events to terminate the hiring immediately. They did that on 12 December by notice in writing. From that time the hirer had no right to use the car, still less had he a right to pledge anyone else's credit for the incurring of expense upon the car. The authorities cited to us by counsel for the appellants show that all of them really are decided upon the question as to whether or not the hirer had authority. In Keene v Thomas it was shown that in the circumstances of that case the hirer had authority to send the car to be repaired and, therefore, the plaintiff's lien was good not only against the hirer but also against the plaintiff. In the circumstances of this case, the hirer had no authority to send the motor car to be repaired, and the claim to a lien accordingly fails. I would only add this, that the argument for the appellants seems to me to be an effort to extend the right to a lien beyond anything which has ever been contemplated. That is shown, as I think, by the two passages just referred to
at 117 by Humphreys J in the judgments of Bankes LJ and Scrutton LJ in Green v All Motors Ltd. Appeal dismissed with costs. Solicitors: L Bingham & Co (for the appellants); Peacock & Goddard agents for W Parkinson Curtis, Bournemouth (for the respondents).
C StJ Nicholson Esq Barrister.