Warburton v. Coumbe

Taylor, J.: Walter E. Coumbe, the defendant in error, sued Warburton, the plaintiff in error, in the Circuit Court -of Polk county, by the summary statutory proceeding in attachment to enforce an alleged laborer’s lien upon -certain lots of land in Polk county and a steam sawmill and machinery located thereon. The amount of the claim sued for was $608.79. The lien is claimed .and sought to be enforced under the provisions of Chapter 3747, approved June 3rd, 1887. The labor performed, for which the lien is claimed, was chiefly that of book-keeper for the defendant in his saw-mill business, and in other business enterprises in which the defendant was engaged. A notice of the lien was Tiled in the Circuit Court clerk’s office on February 21st, 1888, and the summary suit by attachment to enforce it was instituted on the same day. The items of the account for which ihe lien is claimed are as follows: 1885. .Jany., 9th. Part of traveling expenses N. Y. to Acton................ $10 00 Salary 25th Jany., 1885, to 30th April, 1886, 3 J months, at $40 per month................. 130 00 Salary 1st May, 1885, to 18th February, 1888, 33 months, 18 days, at $60 per month..... 2,016 00 [214] Extra salary while drumming, from February, 1886, to end of April, 1887, say 12 months, at $lñ per month.......... 180 00: $2,336 00' Cr. by payments............. 1,727 21 Balance sued for............. $608 79' The cause was submitted to a jury who returned a verdict for $600, upon which the court entered judgment against the defendant for $600 besides the costs,, and the further sum of $100 as an attorney’s fee for the enforcement of the lien. To this judgment the-defendant Warburton has sued out a writ of error. Various errors are assigned, but we shall notice but one of them, as that will dispose of the whole case. The defendant moved for a new trial upon the ground that the verdict was contrary to the evidence, and contrary to law. To sustain his alleged lien the plaintiff testified that Warburton represented various large business interests, such as ‘‘Key West Gas Light Co.,” agent for Hanbury lands, also general land agent; for all these various agencies I kept the books, attended to the correspondence, and did such other things as directed by Warburton. I was book-keeper and manager for the Acton saw-mill. I also acted as clerk and caterer for the Acton hotel that Mr. Warburton owned during the time I worked for him. He says further that the saw mill closed down iu June, A. D. 1887, and did not run again up to the time he quit the employment of W arburton. From the time the mill shut down to the time he quit the defendant’s employment, he says that he drummed for the sale of the lumber on hand, and also tried to sell the mill. The plaintiff in. [215] his pleadings bases his claim to a. lien, under these proofs, upon Section 10 of said Chapter 3747, approved June 3rd, 1887, that is as follows: “Sec. 10. That bookkeepers, clerks, agents, porters and other employes of merchants and transportation companies and other corporations, shall have a lien of superior dignity to all others upon the the stock, fixtures and other property of such merchants and transportation companies and other corporations, to the extent of the amount of any labor performed in the conduct of the business of said merchant, transportation company or other corporation.” There is no special provision in this statute-putting it in force earlier than the time limited by Section 18 of Article III of the Constitution of 1885,. for all laws to become effective, viz: 60 days after the final adjournment of the legislature enacting them; it did not, therefore, become operative or effective until August, 1887, and no lien could be acquired under it until it became effective. The operations of the mill,, on which he claims the lien, were shut down, according to his own evidence, in June, 1887, and it did not resume again during the time of his service. The only service or labor that he performed, in any way connected with the mill business of the defendant, subsequent to June, 1887, was in drumming for the sale of' lumber on hand, and making efforts to sell the mill for the defendant. For these latter services he was certainly not entitled to any lien upon said mill or upon the land on which it was located. Section 10 of the statute, upon which he relies for his lien, gives the book-keepers, clerks, agents, porters and other employes of merchants, transportation companies and-corporations such lien, but the defenant here is shown not to belong to either of these classes. He was-neither a merchant, a transportation company, nor a [216] corporation. But again, suppose we should attach :some importance to the very general assertion of the ■plaintiff that the services for which he claims this lien were those of general manager for the defendant’s •mill, and should hold that, under the provisions of '-Section 2 of the statute referred to, a general manager -of a mill was one of the persons who, uner that section, are given a lien upon mills for any labor done in the construction, repairing or operation thereof; even then, under the proofs, he was not entitled to a recovery in this action, and why? The proof shows that the mill ceased operations in June, 1887, his suit to enforce his supposed lien thereon was not instituted until February 21st, 1888, more than seven months after any labor was performed by him, according to his own statement, in connection with the operation of such mill. Section 17 of said statute provides: “That the liens provided for in this act shall be created at the time any labor is done or material furnished, and shall •continune for six months from the last day upon which such labor was done or material furnished.” .At the time that he instituted his action to enforce it, the plaintiff’s lien, if he was ever entitled to. one, had ■lapsed and expired. We do not think that the proof ■shows that the plaintiff was ever entitled to any lien upon the defendant’s property; but even if it be conceded that he did have such lien, the proof shows •clearly that it had lapsed and expired before action brought to enforce it. He was therefore not entitled to a recovery in the form of action adopted, and the verdict therein was contrary to the evidence, and contrary to the law of the case. The judgment is, therefore, reversed and a new trial ;a warded.