[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 426 AFFIRMED. Plaintiff and others, as employees of the defendant Woodruff, performed labor in repairing an airplane, which had been delivered to their said employer by its owners, the defendants Spaniol and Thomas, under a contract by the terms of which Woodruff agreed to make the repairs for a consideration to be paid to him. Each of said employees filed a separate notice of lien upon the airplane for their share of the labor, claiming to be entitled thereto under the provisions of Section 10272, Or. L. Plaintiff commenced this suit for the foreclosure of his *Page 427 own lien and as assignee of the liens of his said co-employees. The lower court dismissed the suit and from this decree he has appealed.
Section 10272, Or. L., provides:
"Every person, firm or corporation who has expended labor, skill or materials, including automobile tires, upon any chattel, or has furnished storage for said chattel, at the request of its owner, reputed owner or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon said chattel for the contract price for all such expenditure, or in the absence of such contract price, for the reasonable worth of such expenditure for a period of one year from and after such expenditure, notwithstanding the fact that the possession of such chattel has been surrendered to the owner or lawful possessor thereof."
Section 10275, Or. L., which, being a part of the same enactment, must be construed in connection therewith, provides that:
"Every person who is in possession of a chattel under an agreement for the purchase thereof, whether the title thereto be in him or his vendor, and every other person who is in lawful possession of a chattel shall, for the purpose of this act, be deemed the owner thereof, or authorized agent of the owner. * *"
It is essential under this statute that the "labor, skill or materials" for which a lien is claimed shall have been expended upon a chattel "at the request of the owner, reputed owner or authorized agent of the owner, or lawful possessor thereof," and unless performed at the request of one of the persons so designated, the right to a lien does not exist under this statute. This latter section provides that every person who is in possession of a chattel under a contract for its purchase shall, for the purpose of the act, be deemed to be the owner or authorized agent *Page 428 of the owner, and also declares that "every other person who is in the lawful possession of a chattel, shall be deemed to be such owner or authorized agent of the owner." But with the exception of those contracting for the purchase of the chattel, the statute does not attempt to define what other persons may be in the lawful possession of a chattel within the meaning of the statute. If the rule of ejusdem generis could be applied to this statute, it is clear that a bailee for hire is not ejusdemgeneris with a conditional vendee as defined in the statute, since they do not belong to the same kind or class. It is not necessary, however, to pass upon the question of whether the doctrine of ejusdem generis should be applied in construing this statute.
As was pointed out in McDearmid v. Foster, 14 Or. 417,423 (12 P. 813), "the word `lien' had long prior to the passage of this statute acquired a settled meaning," and except as changed by this particular statute, it "is of the same nature it formerly was and the same circumstances must combine to create it." There is a clear analogy between the statute construed by the court in that case and the one now under consideration. Assuming that what was there said correctly stated the law governing the construction of that statute, then it is equally applicable to this statute. It is clear, therefore, that this statute did not intend, except so far as changed by statute, to create a lien unknown to the common law, and that it merely intended to preserve the right to a lien which existed at common law, and at the same time to dispense with the necessity of the lienors retaining possession of the chattel until compensated for the work done, as well as to extend the right to a lien in the cases mentioned which did not exist at *Page 429 common law. For that reason in interpreting the language of this statute, it should be interpreted in accordance with the principles of the common law.
The transaction of the delivery of the airplane by its owners to Woodruff under a contract, whereby he undertook for a consideration, to put it in repair, amounted to a bailment, and made him a bailee for hire. As in all bailments, the bailed property was to be held in trust and for a special object, which in this case was for the purpose of repair. The general ownership was retained by its owners, and Woodruff obtained a special property in it, but only for the specific object for which the property had been bailed. The transaction itself created no agency on the part of Woodruff, and unless such authority is conferred by the statute, Woodruff was not authorized to incur obligations which might become a lien upon the airplane.
It was a principle of the common law that one who has the lawful possession of a chattel and has expended his money or labor on it at the request of the owner, has a lien on the chattel, and a right to retain possession of it until his demand is satisfied, and that in order to preserve and enforce this lien, it was necessary for the person performing the work to retain possession of the chattel until compensated, because a voluntary relinquishment by him of the possession of the chattel would operate to extinguish the lien. It was equally well settled that the lien of a workman at common law belongs strictly to the person contracting to do the work or service, and not to the subcontractors or persons employed under him: Jacobs v.Knapp, 50 N.H. 71; Hollingsworth v. Dow, 19 Pick. (Mass.) 228; Jones on Liens (3 ed.), § 26, and cases there cited. *Page 430
It was requisite to the validity of a lien at common law that the lienor should, while doing the work upon a chattel, have an independent and exclusive possession of it, either actual or constructive: McDearmid v. Foster, supra; 37 C.J., p. 325, § 33B. How far this statute was intended to change the rule last stated is unnecessary for us to decide, for in the instant case, the work for which the lien was claimed was not done at the request of the owners, but at the request of Woodruff, their employer. There was no privity of contract such as was required at common law between the owners and said employees; the latter were employed by Woodruff, and in doing this work, they obeyed his orders and looked to him for their wages. The relation of debtor and creditor as between them and the owners did not arise, and whatever custody they had in the airplane while at work upon it was the mere custody of a servant and employee engaged in work upon property belonging to or under the control of his master.
Our mechanic's lien law statute makes "every contractor, subcontractor, architect, builder or other person having charge of the construction * * the agent of the owner for the purposes of the act." This statute contains no such provision. On the contrary, it requires that to be lienable, the work or material shall be expended at the request of the "owner, reputed owner, or his authorized agent or lawful possessor thereof."
To constitute the lawful possession of a chattel, or to make one the lawful possessor of a chattel under this statute, possession alone is not sufficient; the possession must itself be lawful, and if the possession is that of one not the owner, then to be lawful, such possession must be not inconsistent with the *Page 431 rights of the owner. Obviously it was intended by this statute to confer the right to a lien for work done upon a chattel, where the work for which the lien is claimed was done at the request of either the actual owner of the chattel, or of one who while not the actual owner had been, for purposes other than that of having it repaired, entrusted by the owner with such possession and control of it as to give him apparent authority to contract with others for its repair and, in such case, to give a lien to the one contracting to do the work in reliance thereon. As so used, the words "lawful possessor," were intended to designate a person who is authorized under the statute to have the work done, but not a person who himself has contracted to do the work. In this respect, the statute was an enlargement of the common-law right to a lien, for at common law, it was only when the work was done at the request of the owner that the lien would lie.
In the instant case, Woodruff was the person who had contracted to do the work, and who, if not paid, was entitled to a lien for his own services and for those performed by his employees. While performing the work, he was in possession of the airplane, but his possession was only for the purpose of performing his contract. Possession by him for any other purpose would be inconsistent with the rights of the owner, and would not be a lawful possession. To make the repairs, it was necessary for him either to perform the labor himself or to employ others to perform it. But he was not authorized, under his contract, to enter into any contract which would have the effect of creating a lien upon the airplane in favor of any third party. As between him and the one he had contracted with, there was a privity of *Page 432 contract, but as between his employees and the one he had contracted with, there was no privity of contract. He being the one who had made the contract to repair the airplane, the right to a lien was personal to himself, and did not extend to his employees. This lien, as at common law, is in the nature of a pledge by the owner of the property to the party with whom he contracts for labor to be bestowed upon it, and like all pledges, can only be created by the owner, or by his authority. A party, being in the lawful possession of a chattel and contracting for its repair, is by this statute vested with authority to make such contract, but a party who has contracted to make the repairs has no power under this statute, to pledge the property in his custody. See Jacobs v. Knapp, supra; Story on Bailments, § 440, Hollingsworth v. Dow, supra.
Bailees for hire have no power to pledge the bailed property for purposes inconsistent with the bailment. This was the rule at common law, and we think it has not been changed by this statute. For Woodruff to pledge this property for the wages of his employees without the authority of the owners, would be in violation of his contract, and would be making an unlawful and unauthorized use of the property, for he was not entrusted with it for any such purpose, and had no such authority over it. As to the employees of such bailee, we think the statute was not intended to change the common-law rule, and that they are not entitled to a lien for their wages. We think the authorities cited fully sustain this view.
It is evident from the reading of this statute that its object and purpose was to change the common-law rule so as not to require the lienor, in order to preserve his lien, to retain possession until compensated for his *Page 433 work, and to allow a lien, notwithstanding the fact that upon completion of his contract he had returned the chattel to the person by whom he had been employed, and also to provide an additional method for the enforcement of the lien. It was also the intention of the statute to authorize one in the lawful possession of a chattel to contract for work to be done thereon but not after he had himself contracted to do the work. These, we think, were the only changes in the law that the statute intended to make.
To construe this statute to mean that, where the owner or lawful possessor of an airplane, automobile, engine, machine or other like property delivers it to a machine-shop, garage or any other place for repairs, and contracts with the proprietor thereof for its repair, every employee of the proprietor who does work upon it at the request of the proprietor can have a lien for his share of the work, would constitute such a radical change in the law, and would cause so much public inconvenience, litigation and expense, that a statute ought not to be given that effect unless its language clearly requires it. In such case, the servant performs the work upon the sole credit of the master, and for his work and that of all other persons employed by the master the owner is liable to the master alone. Upon payment being made to the master, the owner's entire legal obligation is discharged, while if the owner fails to pay, the statute gives to the master a lien for his own and the services of his employees. There is nothing in the language of the statute indicating a legislative intent to confer upon the servants and employees of the master the right to separate liens for their individual work. *Page 434
The lower court held that the liens of these servants and employees of Woodruff were invalid because not authorized by the statute, and with this conclusion we agree. The decree must therefore be affirmed, but without costs to either party upon this appeal. AFFIRMED.
McBRIDE and COSHOW, JJ., concur.