APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
On February 15, 1972, the plaintiffs, Max and Anne Leavitt, filed a replevin action in the circuit court of Cook County seeking the return of their automobile and certain personal property contained therein, allegedly seized by the defendant auto dealer, Hearn, Inc., without plaintiffs' consent and absent proper legal process. Plaintiffs also sought compensatory damages. Defendant filed a counterclaim for the amount allegedly due for mechanical work performed on plaintiffs' auto. The trial judge, sitting without a jury, awarded possession of the automobile and personal property to plaintiffs, as well as $275.28 in damages. The judge also dismissed defendant's counterclaim. Defendant appeals.
The facts are undisputed. On January 17, 1972, after plaintiff's auto failed to start, Mr. Leavitt had the vehicle towed to defendant's place of business. Leavitt informed defendant's service manager that he wanted the ignition problem fixed and a malfunctioning heater repaired. Leavitt also directed that no other work was to be performed on the vehicle without first securing his permission.
When Leavitt returned to pick up his auto 11 days later, he gave defendant a check payable to it in the amount of $58.45 for the work performed on the vehicle. After driving a short distance, it became apparent to Leavitt that the heater was not working properly, and he drove over to the side of the road and turned off the motor. When the auto failed to start a few minutes later, Leavitt telephoned his bank and stopped payment on the check.
Leavitt later complained to defendant that it not only had failed to perform the work he had requested but also that it had ignored his prohibition against performing unauthorized work. He subsequently had the vehicle serviced by another mechanic.
About 2 weeks later, on Sunday morning, February 13, Leavitt stopped at a restaurant to have breakfast. He parked the auto in the adjacent lot. When he returned a short time later, the vehicle was missing. He called the police to report it stolen; however, the police informed him that they already had been notified by defendant that it had taken the auto. When attempts to resolve the dispute voluntarily failed, this action was commenced.
Defendant contends that its surrender of the vehicle did not constitute a relinquishment of its mechanic's lien for the work it had performed. Assuming that proposition to be true, defendant next argues that it was entitled to enforce its lien without legal process as long as no actual breach of the peace ensued. Defendant finally contends that plaintiffs' failure prior to trial to tender to defendant the amount due it omitted fulfillment of a condition precedent to bringing a replevin action.
Before addressing ourselves to defendant's contentions, we must comment on a footnote contained in defendant's brief which states that "the remedy of replevin has been held unconstitutional. Fuentes v. Shevin (1972), 407 U.S. 67." This statement is overbroad and inaccurate. Fuentes and a companion case dealt with the constitutionality of a particular feature, specifically the "writ of replevin" provision, contained in the replevin statutes of Florida and Pennsylvania. This provision had enabled the plaintiff, as owner of the chattel, prior to trial and without notice to defendant, the possessor of the chattel, to regain possession of the chattel. The fact that defendant was compelled to surrender the property without even a summary determination of the relative rights of the disputing parties led the Supreme Court to declare such a provision a deprivation of property without due process of law. In Brooks v. LaSalle National Bank (1973), 11 Ill. App.3d 791, 298 N.E.2d 262, we subscribed to that holding, and extended its rationale to the area of landlord lien distress. But, as was noted in Fuentes, its holding is quite narrow. A single statutory provision, the writ of replevin section, was declared unconstitutional. To maintain that the entire statutory scheme relating to replevin actions is unconstitutional, however independent the other sections may be to the writ section, is unsupportable.
• 1 If defendant's footnote is an attempt to apply the Fuentes holding to the Illinois writ provision existing at the time of trial, we must reject the effort. In the first place, defendant has never directly made the provision an issue in the present case. Moreover, Fuentes applied to an appeal by the possessor of a chattel from a judicial order refusing to enjoin the state's enforcement of the writ provision, and the Court's decision, unlike the present case, dealt with the constitutionality of pre-trial procedures pending a trial on the merits. Additionally, it appears inconsistent to permit defendant, which seized plaintiffs' vehicle without their consent and absent any legal process, to suggest that plaintiffs' use of a replevin action would be unconstitutional.
Defendant's first contention is that its mechanic's lien for work performed on plaintiffs' vehicle continued even after it had surrendered actual possession of the vehicle in exchange for plaintiffs' check. This argument rests upon defendant's interpretation of the Illinois mechanic's small lien statute. (Ill. Rev. Stat. 1971, ch. 82, par. 47(a) et seq.) Paragraph 47(a) reads as follows:
"Labor, services, materials or storage of chattels.] § 1. Every person expending labor, services, skill or material upon or furnishing storage for any chattel at the request of its owner, authorized agent of the owner, or lawful possessor thereof, in the amount of $200 or less, shall have a lien upon such chattel beginning upon the date of commencement of such expenditure of labor, services, skill, or materials or furnishing of storage, for the contract price for all such expenditure of labor, services, skill, or material, until the possession of such chattel is voluntarily relinquished to such owner or authorized agent, or to one entitled to the possession thereof. * * *"
Defendant maintains that the term "voluntarily relinquished" means that possession is only so relinquished, and hence the lien is only lost, at the time the check is honored or the debt otherwise paid. Plaintiffs counter that defendant "voluntarily relinquished" possession of the vehicle when it surrendered actual possession, thereby extinguishing its lien irrespective of the fact that the check was later dishonored.
• 2-4 In our view, the mechanic's lien in paragraph 47(a) survives the mechanic's surrender of actual possession of the specified chattel in return for the owner's check until the draft is honored. In furthering the objective of the legislature in paragraph 47(a), the term "possession" rather than the term "voluntarily relinquished" demands our interpretation. Thus, when a mechanic exchanges the auto for the owner's draft, he is voluntarily relinquishing only actual possession of the auto, while legal possession continues in his behalf until the draft is honored or the debt otherwise paid. A primary consideration for that determination is the essential nature of a check. The mere issuance of a check does not constitute an immediate assignment of funds from the drawee to the payee. This takes place only when the drawee accepts the instrument. (Ill. Rev. Stat. 1971, ch. 26, par. 3-409(1).) A draft is a written promise to pay, and the underlying obligation, suspended pro tanto when the draft is issued, is resurrected if the draft is later dishonored. (Ill. Rev. Stat. 1971, ch. 26, par. 3-802.) In view of the conditional nature of a draft and the easy means at the drawer's disposal to order the drawee to stop payment on the draft, we do not believe that the legislature intended the mechanic's lien to be as easily displaced as the plaintiffs suggest. This construction also appears to be in keeping with the clearly evidenced legislative intent to create a ready means for a small claims' creditor to establish a specific lien.
A similar result has been reached in all the jurisdictions which have considered the issue. (Maxton Auto Co. v. Rudd (1918), 176 N.C. 497, 97 S.E. 477; Frost Motor Co. v. Pierce (1945), 72 Ga. App. 447, 33 S.E.2d 910; Yellow Manufacturing Credit Corp. v. Horowitz (1938), 2 N.Y.S.2d 566, 166 Misc. 251.) In Maxton, in which the facts were strikingly similar to those in the instant case, ...