Quillian v. Central Railroad & Banking Co.

McCay, Judge. 1. It seems very plain to us that the plaintiff had no mechanic’s lien, under section 1981 of the Code of 1873, or under a similar section in Irwin’s Code. The plaintiff had no possession of the brick. The possession was in Jenkins, who was making the brick for the road. It was the intent, and it is the plain meaning, of section 1981 of the Code, to give the lien to the manufacturer or repairer — he who controls the work, has the shop — and not to the workmen. Their lien is upon his property, and not on the property of his employer. It would breed endless confusion, and almost a stoppage of business, to declare that each workman in a shop, who repairs a boot or a buggy under the orders of the owner of the shop, has a lien on the boot or buggy he repairs. The lien in such a cáse belongs to the proprietor. And the same is true here. Jenkins was the contractor; he was making these brick for the road; the road was 1ns debtor, and not the debtor of his employees. 2. Was the-contract between Jenkins and the road one of employment, or was Jenkins to make the brick and sell them to the road ? Could he have lawfully sold them to any one else ? If I employ one to dig ore on my land, at so much per ton, it is my ore. If I employ him to get rails on my land, at so much per hundred, they are my rails, even though they are to be counted and inspected, and though I have a right to refuse pay if they do not come up to a certain standard. This was the company’s land and yard and machinery, and the brick were, in our judgment, the property of the company. That they had to be counted and delivered and inspected does 376 not alter the matter; nor, if that was the bargain, does it help the case if the company had a right to refuse to pay for them if they did not come up to a certain standard. This, and all these conditions, are every day conditions between employer and employee. Judgment affirmed.