#### John Rehm, Defendant in Error, v. Clarence S. Viall, Plaintiff in Error.

Gen. No. 18,555.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed March 11, 1914.

Statement of the Case.

Action in replevin by John Rehm against Clarence S. Viall to recover possession of an automobile under a chattel mortgage given by one William O. Foster to *426secure the payment of part of the purchase price. Defendant claimed a lien on the machine for repairs thereon, for oil and supplies furnished the owner, and • for care and keeping the same in his garage. From a judgment for plaintiff, defendant brings error.

Abstract of the Decision.

1. Automobiles and garages, § 5 * —when proprietor of garage not entitled to a lien. The proprietor of a garage is not entitled to a lien on an automobile for keeping and caring for same in his garage, nor for supplies such as gasoline and oil furnished by him to the owner while the machine was being kept in the garage.

2. Chattel mortgages, § 161 * —priority as against mechanics’ liens. While a mortgagor cannot by contract create a lien in behalf of a mechanic so as to give it priority over a previously recorded chattel mortgage, the mortgagee’s authority for the creation of such a lien may be implied where the property is to be retained and used by the mortgagor, and is of such a character as to involve the occasion for the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use.

3. Mechanics’ liens, § 125 * —when may he asserted against third persons. The common-law lien of a mechanic or artisan on a chattel can be asserted against a third person only when the property is retained in the actual and continuous possession of the lien claimant, his agent or servant.

4. Mechanics’ liens, § 135 * —when surrender of possession does not toaive lien on chattel. As between the immediate parties, a change of possession does not defeat the right of a mechanic claiming a lien on personalty to assert his lien, unless by surrendering possession he can fairly be understood as waiving his lien.

5. Automobiles and garages, § 5 * —when proprietor of garage waives lien for repairs. The proprietor of a garage claiming a lien on an automobile for repairs loses his right to assert such lien against a previously recorded chattel mortgage by surrendering the machine to the mortgagor.

John C. Trainor, for plaintiff in error.

Isaiah Campbell, for defendant in error.

*

‘See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice Baume

delivered the opinion of the court.