Universal C.I.T. Credit Corp. v. Rater

FOX, P. J.

In this action, through the ancillary remedy

[494]

of claim and delivery, plaintiff sought to recover possession of two motor vehicles from defendant Rater. Plaintiff is the assignee and owner of a conditional sales contract between defendant Hill, the registered owner of said vehicles, and one Walter Burge Ford. Defendant Hill had turned these motor vehicles over to defendant Rater, who operates the J & R Garage, for the purpose of having certain repairs made on said vehicles.

Rater made repairs on said vehicles, totalling $1,150.42, for which he claimed a lien (see Civ. Code, §3068, subd. (a)). These repairs were made without notification to and prior consent of the plaintiff (see Civ. Code, § 3068, subd. (b)).

1

Plaintiff tendered to Rater the sum of $200, pursuant to the provisions of said section. The tender was rejected by Rater as being insufficient. Plaintiff did not thereafter deposit in the name of the creditor said amount with any bank and give notice thereof to defendant Rater under the provisions of section 1500, Civil Code.

2

The sheriff, under the claim and delivery proceedings, seized the vehicles.

Defendant Hill was behind in his payments on the conditional sales contract. He did not file any answer with the result that a default judgment for possession only of these vehicles was rendered against him. Defendant Rater filed an answer, including a counterclaim in which he sought to recover the $200 previously tendered to him by plaintiff but which he had rejected. The trial court gave judgment in favor of Rater in this amount. It is from this judgment that plaintiff appeals.

Defendant Rater concedes that his rejection of plaintiff’s tender of the $200 extinguished his lien. He argues, how

[495]