Stevenson v. Magill

Goss, J. This action is brought to foreclose a farm laborer’s lien. Plaintiff, a woman, performed labor as a cook in a cook car in threshing Magill’s grain in September and October, 1915. The trial court dismissed the case, from which judgment plaintiff appeals, demanding a trial de novo. The proof discloses that in the fall of 1915 Magill had about 20,000 bushels of grain to be threshed. He owned his own thresh — 578 — ing rig. He entered into an indefinite oral understanding with one A. J. Kelly under which, to put it in Magill’s own language, “Kelly was to have the machine when he completed threshing” for Magill. “There wasn’t nothing expressly named in the amount of dollars, but he was to thresh my crop for the rig complete.” The value of the rig is not stated. Magill said, in substance, that he wouldn’t let Kelly move off the place until his threshing was done. Kelly assumed charge of the rig and moved it on Magill’s farm with the cook car at Magill’s buildings, where it remained. Kelly employed a crew, and, among them, the plaintiff as cook. Kainy weather prevented continuous work and from the 1st of September until the 6th of October, 1915, the period during which plaintiff cooked for the threshing outfit, only about 3,000 bushels of wheat and 4,000 bushels of oats were threshed. No threshing was done at any other place than Magill’s. He advanced money to Kelly from time to time to pay for machine repairs, provision, and, expenses, to an amount, he says, of about $400. Magill’s figures and account are wholly indefinite and unsatisfactory, being merely estimates. He refused to be specific and certain. Several of Magill’s teams and men were working as a part of Kelly’s crew, and Kelly was charged with their wages, Magill claims. Some ten days or two weeks before Kelly abandoned further performance of the alleged contract and threw up the deal, plaintiff told Magill to keep enough back to pay her wages, as he was paying Kelly money from time to time. She says: “I would like if you would hold out my wages. Kelly is drawing the wages and it isn’t coming to the cook car. He goes to town and doesn’t come back until it is all gone. I am working here every day, and I know the money all comes through you and I would like to have you to hold out my wages. And he says: “Sure, I will do that. You are the one that needs the money if anyone does, in preference to- these hoboes who sit around here and play poker.” The evidence is in dispute as to the amount of threshing that was done after this talk, but thereafter Magill paid Kelly at least $70. On October 6th plaintiff quit for nonpayment of her wages. Kelly then told plaintiff that Magill was taking the rig back and that he, Kelly, was not going ahead with the deal. Magill took the rig back, he says, and decided not to run the machine, but to hire his threshing done by another rig, and refused to provision the outfit. Plaintiff shortly afterwards filed her farm laborer lien, — 579 — claiming $106.50 for thirty-five and one-half days’ work at cooking for the outfit while they were threshing defendants’ crop. It is admitted that there was no price per bushel fixed for whatever threshing was done or was to be done. It was understood that Magill would make some advances to Kelly, known hy him to be without means. The lien was filed against both Kelly and Magill, and against the crop threshed, but Magill is sole defendant. He claims that he had sold the rig to Kelly, who had hired plaintiff, and that he was not responsible for her wages, and also that no farm laborer’s lien is allowed by law for such services. The proof fails to disclose that title to the rig ever parted from Magill, or that it was not the joint venture of Kelly and Magill. It is true that he testifies, in response to leading questions from his counsel, that he turned the rig over to Kelly and sold it to him and placed him in possession of it, and took it back eventually, but the circumstances are such as to require stronger proof than this of his parting with title. There was no written agreement, and it is indefinite as to whether title was to pass with the delivery of the possession or not until after all of Magill’s threshing was done and his advances repaid, or when “the job was completed,” as Magill first states was the fact, and which is more probable. Several’ rigs and teams were furnished by Magill, and he was to receive wages for them and was to receive this back after the threshing was done and Kelly had earned enough elsewhere to repay him, but it is admitted that the machine was not to leave Magill’s farm until his threshing was done. It is also a circumstance that, as Magill states, no settlement was had when Kelly threw up the rig and he took it back. Everything was then left as indefinite as was the contract under which it was turned over, if at all, to Kelly in the first instance. To require less than certainty in the terms of the contract as to when the title passes, under such circumstances, would leave a situation such as to permit a party in Magill’s position, by making an indefinite deal, to shirk responsibility for wages and expenses of his threshing upon any ne’er-do-well that he might see fit to ostensibly turn his rig over to. A lawsuit is the usual outcome of such a condition of affairs. Gn the other hand, from plaintiff’s viewpoint, the judgment rendered was wholly inequitable and unjust, and amounts to little short of fraud upon her. Magill had knowledge that she was cooking for the crew, and that — 580 — her work was keeping the crew together all through the rainy weather and from the very first until the last day of her employment, as the cook car was at Magill’s home and in his yard, and he must have known that she was cooking for the crew. Ten days or two weeks before the inevitable result came she had a talk with him, and he knew she was not getting her wages, and she says he promised to hold out enough money from Kelly to pay her, and evidently relying upon him she continued work. Under all the circumstances the fair inference is that Kelly was the agent or employee, or, at the most, virtually a partner of and with defendant llagill and for whose acts in employing this plaintiff, of which defendant had notice, defendant should be held responsible. But it is claimed that under the authority of Lowe v. Abrahamson, 18 N. D. 182, 19 L.R.A(N.S.) 1039, 119 N. W. 241, 20 Ann. Cas. 355, the plaintiff has not performed work for which she can claim a farm laborer’s' lien. This contention is fallacious. What was said in Lowe v. Abrahamson evidently lead the learned trial judge to adopt defendant’s theory in dismissing this case. But that case went far from holding that a farm laborer’s lien could not be claimed simply because the work was performed by a woman. There is no sufficient reason why, where a woman performs labor for which a man might claim a farm laborer’s lien, a woman should not also have the right to claim a farm laborer’s lien therefor. Had Magill employed a man to do the cooking on this rig, it could hardly be asserted that in law he would not have been entitled to a farm laborer’s lien as security for his services rendered in procuring the threshing of the crop, under the holding in Heddan v. Walden Farmers Elevator Co. 31 N. D. 392, 153 N. W. 1015, to the same extent as the farm laborer who assisted in cutting the crop. Lowe v. Abrahamson merely holds that a woman doing ordinary housework on a farm is not a farm laborer within the meaning of the statute granting a lien for the wages of farm laborers. Certainly, the case should not be applied to facts such as are before us, because to do so would be the equivalent of denying a lien to a woman while under the same facts it would be granted to a man for the same work. The right to a lien does not, and should not, depend upon the sex of the individual who performed the work. If any person working upon this threshing rig was entitled to a lien, this plaintiff was. Her work contributed directlv, not x'emotely, to the garnering of the crop raised upon this land, in feed — 581 — ing the men who were threshing. In equity and good conscience she was entitled to a lien for, as well as to, her wages from defendant Magill, who should not be permitted to shift and juggle responsibility for, while enjoying the proceeds of, plaintiff’s labor. This holding but follows Lowe v. Abrahamson, supra. That decision carefully sets forth testimony to establish “the character of the work performed,” quoting the opinion. It carefully distinguished that holding on facts from Winslow v. Urquhart, 39 Wis. 260, and Breault v. Archambault, 64 Minn. 420, 58 Am. St. Rep. 547, 67 N. W. 348, cited therein, wherein cooks for logging camps were held entitled' to a lumberman’s lien upon logs for services performed as lumbermen. In Lowe v. Abraliamson it is said: “In these cases [the logging crew cases] the cooks went into the logging camps as members of logging crews and did no other work except to cook for them. In this case.the plaintiff did other work besides cooking, and cooked for others than the farm laborers.” 18 N. D. p. 185. This plaintiff was, as in the logging cases, a member of the crew, doing no work but cooking for the crew. Engaged in farm labor only at threshing. Under the interpretation of Lowe v. Abrahamson, given in that opinion, that court would have held plaintiff entitled to a lien. If a cook at a lumber camp is entitled to a lien as a lumberman, a-cook at a farm laborer’s camp or cook car is likewise entitled to a farm laborer’s lien as a farm laborer. See also Young v. French, 35 Wis. 111, holding, as interpreted in 39 Wis. 268: “One who cooks for the men at work on the logs directly is entitled to a lien thereon for his wages under the statute. ... It seems to us that the person who cooks the food for the men who fall the trees and work directly and immediately upon the logs or timber perforins service in the cutting, falling, driving, etc., such logs or timber within the meaning of the statute equally with those who use the ax, the saw, or the team to the same end. . . . The statute under consideration was enacted in the interests of labor, and a sound public policy requires that it be liberally construed. The construction contended for on behalf of the plaintiffs is too narrow, and, if adopted, would go far to defeat the objects and purposes of the statute.” Winslow v. Urquhart, 39 Wis. 260-268. Our statute is also remedial and to protect the laborer, male or female, coming within its letter and spirit. In 64 Minn. 420, it is said: “It is evident that a cook or a blacksmith is as essential — 582 — to a logging crew as is the man who swings an ax or drives a team, and it is also evident that both perform manual labor. If the ax man or the teamster was compelled to leave his work and spend two hours of each day in preparing his own food, or in shoeing his horses, or repairing his sled or tools, would it be suggested that his time while so engaged should be deducted from his day’s work, and a lien allowed for the balance only? We believe that no one would think of asserting such a proposition. And, if this be so, why should a person who renders these services, but performs no other, he declared outside of the statute, and thus deprived of a lien?” Our statute § 6857, Comp. Laws 1913, reads: “Any person who performs services for another in the capacity of a farm laborer . . . shall have a lien,” etc. Plaintiff was working “in the capacity of a farm laborer.” ' But, to avoid any misunderstanding of or misapplication of this holding as precedent, it may be stated that a cook on a cook car for the ordinary thresher has no farm laborer’s lien upon the grain threshed for others by said thresher, as the cook would not be considered as a farm laborer, but a laborer for the. thresher, who as thresher is not a farm laborer under this statute, but one who instead has a thresher’s lien for his protection. Nor would an ordinary housemaid or hired girl who, with her other duties, cooks for a threshing crew working for her employer, be a farm laborer within the lien statute. Lowe v. Abrahamson, 18 N. D. 182, 19 L.R.A. (N.S.) 1039, 119 N. W. 241, 20 Ann. Cas. 355. But a farmer owning and operating his own threshing machine may, in doing his own threshing, employ farm laborers who may, for said threshing, claim farm laborers’ liens upon the grain threshed while working for the farmer as farm hands at threshing his own grain. Heddan v. Walden Farmers Elevator Co. 31 N. D. 392, 153 N. W. 1015. And the person employed solely to cook for said laborers so engaged in threshing should be considered as a farm laborer ,and as contributing directly to, and performing, the labor of garnering the grain. The cook is as much a farm laborer as the spike pitcher on the threshing rig, threshing it. In Heddan v. Walden Farmers Elevator Co. supra, it is stated: “The flax could neither be harvested nor threshed except by the use of machinery, and certainly the mere fact that part of plaintiff’s work consisted in aiding in the operation of machinery owned and operated by the,employer did not deprive plaintiff of the — 583 — character of a farm laborer.” If this cook working for this farmer on the employer’s own farm, assisting in threshing the employer’s own grain, is not working as farm laborer, then the water boy carrying water for a crew of farm laborers is not a farm laborer. Both are farm laborers within the meaning of our lien statute. In some of the cases, as, for instance, McCormick v. Los Angeles City Water Co. 40 Cal. 185, it is argued that if a cook is entitled to a lien, those furnishing provisions to eat would be entitled to one .also under similar reasoning. But this overlooks the fact that under the terms of this statute the lien is given for farm labor performed, and not for provender furnished. Likewise, a surgeon performing services for a farm laborer is doing the work of a surgeon, not that of a farm laborer. No need of confusing the question before us by such conclusions as drawn in 40 Cal. 185. The judgment appealed from should be reversed and a judgment entered in favor of plaintiff and against defendant for the sum of $106.-50 and interest from and after October 6, 1915, together with judgment for foreclosure of the laborer’s lien upon the crop threshed, together with the costs in District Court and on this appeal. Judgment is ordered entered accordingly.