Kline v. Comstock

Cassoday, J. Exception is taken because the court charged the jury, in effect, that if the plaintiff was employed as scaler by the Babcocks, or by them and the Com476 stocks jointly, then it was competent for the Babcocks to further employ him to load logs; and if they did, and he performed such work, then they were liable to him therefor, and the same was a lien upon the logs in addition to the amount he earned as scaler; that if the plaintiff contracted with the Comstocks "alone, and fully and fairly performed his work as such scaler, he had a right to perform any further work for the Babcocks upon the logs “which did not interfere with the performance of his duty as scaler,” and in such event he would be entitled to a lien-upon the logs for such additional labor; that if the .plaintiff performed such extra work upon the logs pursuant to such contract with the Babcocks, for which otherwise they must have employed another to do, “the plaintiff meanwhile performing his duty as scaler,” then “the Comstocks cannot complain, because it could make no difference to them whether the plaintiff or some third person performed such labor and acquired a lien upon the logs therefor, so long as the plaintiff’s contract to scale was fully performed.” It seems to us that this charge was substantially correct, and that the request to charge to the contrary was properly rejected. It was conceded that the plaintiff had a lien for the amount of his services as scaler, and that the same was tendered and kept good. The logs were to be cut, hauled, and delivered by the Babcocks. The men necessarily employed by them to do the loading of the logs, as well as others, thereby acquired a lien upon the logs under the statutes, even as against the Comstocks as purchasers. Sec. 3329, R. S.; sec. 1, ch. 330, laws of 1881; sec. 1, ch. 319, laws of 1882. The plaintiff was not precluded from the benefit of such lien for such service in loading logs, if it in no way interfered -with his duties as scaler. Under the charge, the jury necessarily found that it did not.so interfere. With that fact as a verity in the case, there seems to have been nothing to prevent such lien. [477] 2. Exception is taken because the court charged the jury: “ If you find that Schultus performed work upon the logs in question, and afterwards assigned his claim, therefor, or for a part thereof, to the plaintiff before he (Schultus) was paid or commenced suit therefor, and the plaintiff filed his petition for a lien, including the amount so earned and assigned to him by Schultus, the plaintiff in such case is entitled to recover the amount or part of Schultus’ earnings assigned to him and due from the Babcocks, and that the same is a lien upon the logs.” Since the plaintiff and Schultus, respectively, had liens for services upon the same logs, the claim of the latter was assignable to the plaintiff, who was expressly authorized by statute to purchase and take an assignment of the same, “subject to all defenses and setoffs to such claim against the original owner,” and include the same in his own petition for a lien, as he did. Sec. 3336, R. S. The particular objection to this portion of the charge is that this section does not expressly authorize the assignment of a part of a claim, leaving the assignor to enforce a lien for the balance. It is, moreover, maintained that a part of an entire claim was not assignable at common law without the consent of the debtor, and such is the import of the authorities cited. But here the evidence is undisputed that the assignment to the plaintiff by Schultus of a part of his claim, was made with the express sanction and agreement of the debtors,— the Babcocks, — who, as we have seen, were authorized by statute to incumber the logs for labor upon them, even as against the Oomstoeles. This being so, we think the portion of the charge quoted was substantially correct. The objection to an assignment of a part of an entire claim is to save parties from a double controversy and perhaps double litigation; but of course the ground of the objection fails when, as here, the assignment is with the [478] consent of the debtors and cannot operate to increase the number of liens filed. By the Gourt.— The judgment of the circuit court is affirmed.