Rara Avis Gold & Silver Mining Co. v. Bouscher

Helm, J. There is nothing in the pleadings or evidence that calls for the second instruction given on behalf of plaintiff below, or for any instruction whatever upon the subject-matter therein contained. The damages which defendant sought to recoup were — First, $1,045.23 of its funds, alleged to have been wrongfully appropriated by [387] plaintiff to his own use; and, second, such a sum as would compensate the injuries occasioned by plaintiff’s negligent and unskilful working of the property, and his negligent and wasteful use- of defendant’s money. No controversy exists in the case as to the accuracy or good faith of plaintiff’s report touching the amount or value of ore visible in the mine and on the dump, nor is there a claim for damages in any way arising out of this report. The jury were probably misled by the instruction in question, and the judgment must be reversed. Other serious, perhaps fatal, objections are urged, under the assignment of error relating to this part of the charge; but, in view of the foregoing conclusion, it. is wholly unnecessary to discuss them. As the cause will be remanded for a new trial, however, we feel bound to consider a further question which has received careful attention in the arguments filed. Plaintiff’s services -in planning and superintending development work upon the mines, and in planning and supervising the erection of the mill and machinery, are' work and labor in or upon the property, within the meaning of the statute. Such services are similar to those performed by the architect who draws the plans, and personally superintends the construction of a building. The latter is, under statutes containing the words “any person,” or the equivalent expression “and others,” performing labor, etc., uni-formly allowed a lien. Kneel. Mech. Liens, § 13a; Phil. Mech. Liens, § 158. But, besides the foregoing services, plaintiff demanded, and the court recognized, a statutory lien for labor as disbursing agent and accountant. Statutes of the kind under consideration are to be construed liberally in favor of the classes sought to be protected thereby. -But it would be palpable judicial legislation for courts to extend their provisions so as to include demands not fairly covered by the language used. Barnard v. McKenzie, 4 Colo. 251; Edgar v. Salisbury, 17 Mo. 271. Hence, while liens [388] are allowed for many kinds of labor that the authorities term “incidental,” such incidental labor must be directly done for, and connected with, or actually incorporated into, the building or improvement. It will not do to extend the protection given to services indirectly and remotely associated with the construction work. The cook who prepares food for the employees, the blacksmith who shoes the horses or repairs the implements in use, and all similar contributors to the enterprise, are not among the favored workmen. See McCormick v. Los Angeles, 40 Cal. 185. The keeping of defendant’s books, and disbursement of its funds, were matters of great importance; but we cannot declare such services within the purview of the statute. Plaintiff, if entitled to recover at all upon the quantum meruit, might properly have his judgment and lien for part of the services rendered. Their value, in such case, can be proved independently of the objectionable claims above mentioned. But since the judgment Was given, and the lien allowed for’ his improper as well as his proper claims, the decree could, in no event, be permitted to stand. The judgment is reversed, and the cause remanded for further proceedings. Reversed.