Gross v. Eiden

Cole, C. J. This action was commenced in a justice’s court to enforce a lien upon shingles for labor performed in "their manufacture. The shingles were owned by the defendant , Eiden, and were manufactured for him by his co-defendant, McCormick, under a special contract, at a specified price per thousand. Eiden furnished the mill and the timber out of which the shingles were manufactured. The plaintiff was employed by McCormick, who was indebted to plaintiff when the action was commenced in the sum of $45; but there was nothing due from Eiden to McCormick. On appeal, the circuit court held that the plaintiff, on the facts proven, had no lien upon the shingles. The learned counsel for the plaintiff insists that this decision is erroneous. He claims that the plaintiff was entitled to a lien upon the shingles under section 3341, E. S. That section plainly gives a lien where a person performs labor upon lumber for or on account of the owner, agent or assignee thereof. The difficulty, however, in bringing the case within that section is, that there is no evidence to justify us in holding that McCormick, in employing the plaintiff, acted on behalf of or as the agent of Eiden. It will be observed that the section gives the lien where the person performs the labor “ for or on account of the owner, agent or assignee” of such lumber; that is, as we understand the provision, the laborer must be employed by the owner or by some one acting for him, or on his behalf. In this' case it will be borne in mind that the plaintiff was employed by Mr. McCormick himself to labor for him as his servant, and not as the servant of Eiden. McCormick was the party who was responsible for his wages, and against whom a personal judgment was rendered therefor. But the same counsel insists that, as between the plaintiff and Eiden, the owner of the shingles, McCormick should be treated as the latter’s agent within the meaning of this section. He says that because Eiden furnished McCormick the mill and the timber of which he was the owner, and out of which, or by means of [546] which, the shingles were manufactured under the contract, McCormick really represented Eiden in the business, in employing the men to do the work, as fully as though expressly authorized to employ them by Eiden. And he relies upon the cases of Paine v. Gill, 13 Wis., 561; Paine v. Woodworth, 15 Wis., 298; and Battis v. Hamlin, 22 Wis., 669, in support of that position. In the first two cases the laborers were employed by parties who had contracted with Paire to sell and deliver logs at a particular time and place, it being agreed that Paine should have a prior lien upon the logs for his advances upon the contracts from the time they were cut. The principal question in both cases was, whether this lien so contracted for was prior in right or superior in law to the lien which the statute gives the laborer who performs the very work necessary to a fulfilment of the contracts. The court decided it was not, but that the intention of the statute was to give the laborers an absolute lien upon the logs when employed to do work upon them by one having competent authority. There could be no doubt, on the facts in those cases, but that the vendors who contracted to sell and deliver the logs, and who employed the men to work upon them, were to be deemed the owners of the property for the purpose of supporting the lien of the workmen. The cases seem to be quite unlike the one at bar. Battis v. Hamlin was an action of replevin brought by the owners of a lot of shingles against a constable who had seized them upon a lien attachment. The plaintiffs in the replevin suit offered to show on the trial that the plaintiff in the attachment never performed any work upon the shingles in dispute; that he was never employed by them in any manner, but that the shingles were manufactured for them by Watson and Garfield at so much per thousand; and that they had paid Watson -and Garfield in full for manufacturing the shingles before no- ■ tice that Watson and Garfield were indebted to the plaintiff: in the attachment for labor upon them. One question in the case [547] was, whether, tinder the circumstances, the action of replevin could be maintained against the constable who had seized the shingles under a lawful writ directing him to take the identical property in controversy. The court held it could not be maintained; that the writ was a sufficient protection to the officer, who was not bound to show, in order to make out his defense, that the plaintiff in the attachment suit had a valid lien upon the shingles; following Griffith v. Smith, 22 Wis., 647. From this statement it will be seen that the court declined to go into the merits of the attachment suit, or to determine whether the plaintiff in that action had a valid lien or not. The same ruling was made in Union Lumbering Co. v. Tronson, 86 Wis., 126. We have no difficulty whatever in holding that shingles are included in the generic word “lumber,” as used in the statute. But we do not see how it can properly be said, upon the facts of the case, that the labor was performed on the shingles for or on account of the owner or of his agent. The statute seems to imply a privity or some contract relation between the laborer and the owner of the property, where the lien is given; and unless it can be said that McCormick, who hired the plaintiff to work upon the shingles which he was himself manufacturing for Eiden, represented the latter in employing men to fulfil his contract, we do not see that any privity existed as between Eiden and the plaintiff. The fact that McCormick manufactured the shingles out of the timber and at the mill owned by Eiden, does not seem to affect the point we are considering. The real question is, Was the labor performed for or on account of Eiden, or of McCormick? Upon that point there is no room for doubt that it was actually performed for McCormick, who was neither the agent nor assignee of Eiden in employing men to make the shingles. In Babka v. Eldred, 47 Wis., 189, there is an intimation in the opinion of Mr. Justice LyoN that possibly the lien is given, under the restrictions of the statute, where the labor is per [548] formed for a subcontractor. But that was an incidental remark, made by him when bis attention was not specially drawn to the construction of section 3341. We have already said that the learned counsel for the plaintiff claimed the lien under that section. For the reasons which we have given, we think this claim cannot be sustained. In our examination of the case we had some doubt whether the lien could not be sustained under chapter 62, Laws of 1880, and chapter 330, Laws of 1881. Those statutes are somewhat different in their language, from the phraseology of chapter 154, Laws of 1862, which was considered and passed upon in the Babka Case. They attempt to give a lien, among other things, for labor performed in manufacturing logs and timber into lumber, but fail to extend the lien to the manufactured product, strangely confining it “ to the logs and timberOf course it is an absurdity to say that the laborer shall have a lien upon logs and timber for work done in manufacturing them into lumber. But this is the statute law, and it is for the legislature, not the courts, to give the lien for such labor upon the manufactured article. We cannot by construction cure what appears to be an omission or defect in the statute. It follows from these views that the judgment of the circuit court must be affiz'med. By the Court.— Judgment affirmed.