Johnston v. Barrills

Opinion by Mr. Justice Moore. Two questions are presented by the record for our consideration: (1) The sufficiency of the exceptions to the statement filed by the claimants; and, (2) whether they are entitled to be considered preferred creditors under the provisions of the act. The statute (Laws, 1891, page 81, § 1,) in substance provides that any person interested in the property which is sought to be subjected to the preferred claim of a laborer or employe may contest the claim, or any part thereof, by filing exceptions thereto, supported by affidavit, in the court having jurisdiction of the property, and thereupon the claimant shall be required to establish his claim by judgment in such court before any part thereof shall be paid. It will be observed that the first, second, and third exceptions are equivalent to a demurrer to the statement, except the allegation in the second that it “is upon its face and in fact a claim of contractors,” but this allegation is not supported by affidavit; while the fourth and fifth exceptions present facts intended as a defense to the statement, and the affidavit refers to them only. 1. It is not alleged in any of the exceptions that the note was accepted by the claimants under an agreement between them and Barrills that it should discharge the debt of the latter for which it was given. “Nothing,” says Lord, C. J., in Black v. Sippy, 15 Or. 574, (16 Pac. — 256 — 418,) “is better settled than that accepting a note is not payment of an account, nor is accepting one note in re newal of another payment of the old note, unless there is an agreement that the note should be accepted in payment.” From all that appears in these exceptions, the claimants may have taken the note as a mere evidence of the debt, and with no agreement or intention to accept it in payment of their account. As we view the statute, the exceptions therein provided for are in the nature of an answer to a petition of intervention, and should put in issue the material allegations of the claimants’ statement, or some of them, before they could be required to take any steps looking to the establishment of their claim by judgment. If the taking of a negotiable promissory note on account of a precedent debt is to be presumed to be in satisfaction of it, as held in some states, (2 Daniel on Negotiable Instruments, § 1260,) it would have been unnecessary to allege any agreement between the claimants and Barrills on the subject (Bliss on Code Pleading, § 175); but this court, in Black v. Sippy, 15 Or. 574, (16 Pac. 416,) having adopted the language of Lord Holt in Clark v. Mundal, 1 Salk. 124, that “a bill shall never go in discharge of precedent debt, except it be part of the contract that it should be so,” the discharge of the debt on account of the threshing cannot be presumed from the acceptance of Barrills’ negotiable promissory note, and, not having alleged that the note was accepted under an agreement that it should be in payment of the account, it follows that such exceptions did not present any issue requiring further proceedings in support of the claim. 2. The act under consideration, so far as it applies to the case at bar, provides that when the property of any person shall be seized upon any process of any court of this state, then the debts owing to laborers or employes which have accrued by reason of their labor or employ — 257 — ment, to an amount not exceeding one hundred dollars to each employe, for work or labor performed within ninety days next preceding the seizure, shall be considered and treated as preferred, and such laborers or employes shall be preferred creditors, and shall first be paid; but if there be not sufficient to pay them in full, the same shall be paid to them pro rata, after paying costs. Any laborer or employe desiring to enforce his claim for wages shall present a statement under oath, showing the amount due, after deducting all just credits and set-offs, the kind of work for which said wages are due, and when performed, to the officer or person charged with the execution of said process, within ten days after the seizure of the property on any execution or writ of attachment. The claimants, desiring to avail themselves of the foregoing provisions, filed with the said sheriff their statement under oath, from which it inter alia appears: “That said firm was employed by the said Joseph Barrills on or about the third day of October, eighteen hundred and ninety-four, to work for said Barrills in threshing the crop of grain raised by said Barrills during the season of eighteen hundred and ninety-four, at the rate of five cents per bushel for wheat and four cents per bushel for oats; and that under said contract said firm began to work on the third day of October, eighteen hundred and ninety-four, and between that day and the eighth day of October, eighteen hundred and ninety-four, said firm performed work, services, and labor five days, and threshed one thousand eight hundred and twenty bushels of wheat, amounting to ninety-one dollars, and nine hundred and seventy-two bushels of oats, amounting to thirty-eight dollars and eighty-eight cents, and in the aggregate amounting to one hundred and twenty-nine dollars and eighty-eight cents. It will be observed, by an examination of the act, that its pro — 258 — visions are intended to secure to a laborer or employe the benefit of his wages, when his employer’s property has been levied upon by virtue of any judicial process. A proper definition of the terms “laborer,” “employé,” and “wages” becomes necessary to correctly interpret the act. Under a statute of Pennsylvania, quite similar to the one in question, the supreme court of that state held that laborers are those who perform with their own hands the contract they make with their employer: Seider’s Appeal, 46 Pa. St. 57; and in a later case (Wentroth’s Appeal, 82 Pa. St. 469), Mr. Justice Sharswood, in construing a similar statute, said: “The act meant to favor those who earned their money by the sweat of their own brows, not those who were mere contractors to have the work done, and whose compensation was the profit they would realize on the transaction. In Campfield v. Lang, 25 Fed. 128, it was held that one who performed service in sawing up lumber, which involved capital, machinery, and the labor of employés, was not a “laborer,” and that a given compensation per thousand feet to be paid for sawing the lumber was not “wages,” in the sense in which the terms were used in the statute. In People v. Board of Poliee, 75 N. Y. 89, Miller, J., in defining one of the terms, says: “Employes are usually considered as embracing laborers and servants, and those occupying inferior positions.” From the whole scope and tenor of the act in question it is apparant that the terms “laborer” and “employe,” as there used, are synonymous, and relate to a class of persons who by their own manual labor earn a livelihood. Endlich on Interpretation of Statute, § 99. The words “employer” and “employe” are doubtless the outgrowth of the old terms of “master” and “servant,” and have been adopted by reason of and in deference to the exalted position labor has.acquired by the education of the masses. — 259 — 3. The .statute has wisely provided an easy and speedy remedy by means of which the laborer or employe, in case the property of his employer has been levied upon under judicial process, may obtain a portion, at least, of the wages due him for his manual labor. The act, however, being in derogation of the common law, should be strictly construed, and no person should be entitled to its benefits unless he is a “laborer,” and makes a prima faeie showing that his claim comes within its provisions. 4 There being in the statement no affirmative allegation that the grain was threshed by machinery, or that the work involved capital and labor, and the allegation in the exceptions that “said claim is not the claim of an employe or laborer, but is upon its face and in fact a claim of contractors,” not having been supported by affidavit, the question is presented whether the trial court committed an error by invoking the presumption that the grain was threshed by a threshing machine, and dismissing the claim upon such presumption. Mr. Rice in his work on Evidence, (Vol. I, § 80,) in commenting upon a presumption of fact, says: “It is presumed that regular and ordinary means are adopted for a given end. So where the means calculated to attain a certain end appear to have been adopted, and the end itself appears to have been attained, a particular completion will be presumed. ” In a state like this, containing vast fields of wheat, barley, oats, and rye, it cannot be presumed that any other mode of threshing grain exists than by machinery. If, in those states which are noted for the quantity of grain annually raised, A engage B to thresh his crop of grain, and nothing is said about the means to be adopted to accomplish the result, can there be a doubt that the parties were contracting with reference to the implied fact that the grain was to be threshed by a threshing machine? Persons of ordinary intelligence would so understand and interpret — 260 — tbe contract, and there is no just reason why courts should assume a greater degree of ignorance. It must, therefore, be presumed, from an inspection of the claimants’ statement, showing the rapidity with which the work was done, that the grain was threshed by means of a threshing machine, the operation of which involved an outlay of capital and the employment of labor, and that the work was not done by their manual labor alone. The claimants not having been “laborers” or “employes,” the compensation which they were to have received was not “wages,” within the meaning of the act; and hence their claim was not entitled to preference, and the court committed no error in dismissing the proceedings. It follows that the judgment must be affirmed, and it is so ordered. Affirmed.