Baribault v. Robertson , 82 N.H. 297 ( 1926 )

The plaintiff's lien being valid in Massachusetts where it was created will be enforced in this state, although the conditional sale agreement was not recorded (Dorntee Casket Co. v. Gunnison, 69 N.H. 297; Goudie v. Company, 81 N.H. 88); and, being prior in time, takes precedence over the defendants' lien. Sargent v. Usher, 55 N.H. 287.

There is nothing in the language of the conditional sale agreement which would justify a contrary conclusion. Clearly, a covenant by the purchaser that he will give the seller forty-eight hours notice before having any work done on the automobile involves no agreement on the part of the seller that, if repairs are made without such notice, his lien shall be subordinated to that of the repair man.

The defendants argue that the plaintiff's rights under the conditional sale agreement were fixed by the law of Massachusetts, where it was executed, and contend that under the rule laid down in Guaranty Security Corporation v. Brophy, 243 Mass. 597, the defendants' lien should take precedence over that of the plaintiff. Foreign law is a question of fact to be determined by the presiding judge. Hansen v. Railway, 78 N.H. 518; Connecticut c. Co. v. Railroad, 78 N.H. 553. The judge in the present case reports no finding as to what the law of Massachusetts is, and it does not appear that this question was presented to him for decision. Consequently, the defendants are not in position to raise that question at this time.

But if it be assumed that the law of Massachusetts is as stated in the case of Guaranty Security Corporation v. Brophy, supra, the position of the defendants is not materially changed.

That case and Hammond v. Danielson, 126 Mass. 294, cited in the court's opinion, both proceed upon the ground that there was an implied authority from the mortgagee, to the mortgagor in possession, to create a lien for necessary repairs upon the mortgaged property. In neither case did it appear that there was any reference to the subject of repairs in the mortgage itself.

In the present case the very definite provisions of the conditional sale agreement, regarding repairs, negative the existence of an implied agreement upon the same subject such as the Massachusetts court found in those cases.

Exceptions overruled.

All concurred.