M. Gabert, doing business in the city of Fort Worth, was employed by Johnnie Pringle to do certain necessary repair work on an automobile owned by Pringle, and the value of the work so done by Gabert was $173.45. At the time the work was done, the Fritz Motor Company held a chattel mortgage on the car to secure the payment of 12 promissory notes executed by Pringle and Pat Sherman, aggregating the sum of $513.32, which was past due. Before Gabert did the repair work, he had notice of such mortgage by the prior filing thereof in the chattel mortgage records of Tarrant county, and also by actual notice conveyed to him by Pringle.
Before Gabert undertook to make the repairs on the car, Pringle, in his presence and hearing, called up the office of the Fritz Motor Company in Wichita Falls over long distance telephone, and Gabert heard him say to Mr. Fritz, the manager of that company:
“I haVe had a wreck with my car and I will have a note due, or it is due now, and if you can extend the notes I can have the car repaired and pay for it.”
Pringle then reported to Gabert that Fritz had said in reply that it was all right to have the repairs made, and that he would extend, the notes. Gabert further testified that he. would not have placed the repairs on the car if Pringle had not told him that the Fritz Motor Company had authorized him to have the repairs made.
The Fritz Motor Company instituted a suit in the county court at law of Wichita county against Pringle and Sherman, the makers of the notes, to recover the amount due thereon, and for a foreclosure of its chattel mortgage upon the automobile; and sued out a writ of sequestration in that court, directed to the sheriff or any constable of Tarrant county, and acting under that writ, a constable of Tarrant county levied upon the machine, which was then held by Gabert under a claim of statutory mechanic’s lien for the amount due for repairs made, and which Pringle bad *73failed to pay. After the officer making the levy had taken the machine into his possession, Gabert filed a claimant’s affidavit and bond for trial of right of property under the provisions of title 125, of the Revised Civil Statutes of 1925, beginning with article 7402, .and the car was-.then delivered,to him by'the officer who had' levied the sequestration writ, and the oath ahd bond filed by Gabert was then returned to the county court at law of Tarrant county, in which court there was a trial of right of property as between Gabert apd the Fritz-Motor Company. And from a judgment establishing a mechanic’s lien in favor of Gabert and decreeing the same'to be superior - to the ■ mortgage lien of the Fritz Motor Company,'which was also established, the Fritz Motor Company has prosecuted this appeal. ’ .
The .trial was .before the court .upon an agreed statement of the case and of 'the facts proven,, undey the. provisions of article 2280, of' the'Revised Statutes, which agreement is shown in the record here and embodies, among others,- the’facts recited above.
In answer to. special'issues, the jury found that: (1) Prior'to the time that Gabert made repairs '.on the ear, plaintiff’s agent, Fritz, told Johnnie Pringle to go on and . have, the ear repaired and' plaintiff would extend the notes for SO days, so as to give Pringle time to pay for it; (2) 'that, when Gabert replevied •the car from the possession of the constable, its reasonable market -value was $350, and at the time' of the trial the market value of the ear was $150.. ■"
It is the settled rule of decisions in, this state that ¿ chattel mortgage, when duly filed for record, takes precedence over a subsequent mechanic’s lien, such as asserted by Gabert in this case, on personal property. American Type Founders Co. v. Nichols, 110 Tex. 4, 214 S. W. 301; Holt v. Schwarz (Tex. Civ. App.) 225 S. W. 856; Texas. Jurisprudence, Vol. 9, § 65. Gabert pleaded a waiver by the Fritz Motor Company of the right to claim 'the priority of “ the plaintiff’s mortgage lien over, the mechanic’s lien which was given to Gabert by virtue of the terms of the statute, article 5503, Revised Statutes. The pleading presenting such'waiver reads as follows:
“That prior to the doing of the work on. said automobile, Fritz Motor Company authorized Johnnie Pringle (owqer) to have said repairs made, and- that had Fritz Motor Company not authorized the said repairs to be made, he would not have made the same, and that the Fritz Motor Company,, by said authorization, waived its lien, if any it had, and that Ga-bert’s lien was in all things superior to Fritz Motor Company’s mortgage lien.”
The principal contention presented by appellant is that '.the pleading just quoted, in ■connection with the agreed facts recited above, were not sufficient to support the trial court’s finding that the Fritz Motor Company waived the priority of its lien in favor of Gabert’s lien. Many authorities are cited by appellant announcing the general rule quoted from 40 Cyc. 261, in Hines v. Jordan (Tex. Civ. App.) 228 S. W. 633, 634, as follows:
“‘Waiver’ is an- intentional abandonment of a known right. There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby.’ ”
Other authorities are cited announcing the further rule that one will not be held to waive a lien unless the intent be express or very plain and- clear, and that the presumption is always against it, such as 17 R. C. L. 606; 26 Cyc. 673; McBride v. Beakley (Tex. Civ. App.) 203 S. W. 1137.
However, it is also a rule of decisions that a lien may be waived by implication as well as by express words. Medlin v. Hambright (Tex. Civ. App.) 225 S. W. 577; Harding v. San Saha National Bank (Tex. Civ. App.) 13 S.W.(2d) 121; McCarthey v. North Texas Loan Co. (Tex. Civ. App.) 101 S. W. 835.
In American Surety Co. v. Bay City Cattle Co. (Tex. Civ. App.) 268 S. W. 247, 251 (writ of error refused),'it was held that the prior-ity-of á mortgage lien was waived in' favor Of a eláim for pasturing cattle on the ground of implied assént of the mortgage holder that the -lien foí pasturáge should take precedence over the mortgage lien.
The facts of that case are strikingly similar to the facts of this, and we approve the reasoning advanced, especially the quoted opinion of Judge Brewer, of the Supreme Court of Kansas, Case v. Allen, 21 Kan. 217, 30 Am. Rep. 425, reading as follows:
“Now, the lien of the agister is. not the mere creature of contract; it is' created by statute from the fact of the :keeping of the' cattle. Tli'e possession of the agistfer was rightful, and the possession being rightful, the keeping •gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alivfe'there-by; and the principle seems to be, that where the mortgagee does not take the possession, but leaves it with the1 mortgagor, he thereby assents to the creation of a statutory lien for • any expenditure reasonably necessary for the ■preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures •to his benefit. The entire value of his mortgage may rest upon the creation of such indebtedness and lien, as in the case at bar, where the thing mortgaged is live stock, and :the lien for food.”
While the Fritz Motor Company did not in express terms' agree that á lien might arise in Gabert’s 'favor for repairs, yet - it knew that the repairs to''be made-would enhance the value of the property; -it also knew *74that when the repairs were finished, Pringle might not be able to pay for them, and that in that event a statutory lien in favor of Ga-bert would arise. If the repairs had been made upon the order of the Fritz Motor Company, clearly, it would be in no position to deny the priority of Gabert’s lien over the mortgage lien; and we can perceive no reason why the same legal result would not follow from the plaintiff’s authorization of the repairs through Pringle.
There was no error in sustaining Gabert’s objection to the introduction of two letters written by his attorney to the Fritz Motor Company, in which it was stated that Gabert’s lien was superior to the mortgage lien by reason of the failure of the plaintiff to record the mortgage. The contention made here is that since the claim of waiver of lien was not mentioned in those letters, it tended to contradict the plea of waiver later made in the trial of the case.
There is no merit in the assignment, since the facts are all agreed to, and whether or not there was a waiver depended upon those facts, rather than upon some erroneous conclusion of law theretofore expressed by counsel.
And since the court rightfully held Ga-bert’s lien superior to the mortgage lien, the error, if any, in the action of the court in sustaining Gabert’s exception to a pleading of the Fritz Motor Company seeking to recover the value of the use of the automobile while it was in Gabert’s possession after he had replevied it was harmless.
Furthermore, the Fritz Motor Company never had title to or possession or right of possession of the car. The car "had been sequestered by it in its suit for debt and foreclosure of the chattel mortgage, but it was in custodia legis, and the foreclosure of the mortgage lien would not give the Fritz Motor Company right of possession of the car. And in the absence of possession or right of possession there could not, in any event, be a basis for recovery of the value of the use of the car as damages for being deprived of possession. Moreover, under its pleadings, the Fritz Motor Company could not recover more than its debt, with foreclosure of its lien, and court costs. Nor could there be any basis for a claim of damages against- Gabert growing out of his act in recovering from the constable possession of the ear under his claimant’s bond, since article 5503, Revised Statutes, giving him a lien on the car for repairs made by him, also expressly conferred upon him the right to retain possession of the ear until the repairs were paid for.
For the reasons noted, all assignments of .error are overruled and the judgment is affirmed.