Tennessee Coal, Iron & R. R. v. Butler

de GRAFFENRIED, J. Alex Butler was convicted of petit larceny. He was sentenced to hard labor for 110 days as punishment for the crime. The costs in the cause amounted to $29.35, and he was sentenced to additional hard labor for the county until the costs were paid at the rate of 40 cents per day. Under the law the defendant was entitled to work out his costs at the rate of 75 cents per day, instead of at the rate of 40 cents per day.. When, therefore, the prisoner had performed hard labor for the county for the period for which he was sentenced as punishment for his crime, and had also performed aditional hard labor for a sufficient number of days at the rate of 75 cents per day to pay his costs, he was then entitled to his discharge, and any further imprisonment of the prisoner became illegal.—Ex parte Haley, 1 Ala. App. 528, 56 South. 245. The judgment of the court sentencing the prisoner to hard labor showed the above situation.-—Ex parte Haley, supra. (1) When the appellee was sentenced as above stated, the appellant hired him, as a hard-labor convict, from Jefferson county. Appellant kept him at labor as a convict under said sentence of conviction for a longer period than, under the valid part of the sentence, it was entitled to keep him. In other words, the appellant kept him at hard labor for it for several days after the •convict had worked out his costs at the rate of 75 cents [54] per day, but discharged him before the time had elapsed for him to work out his costs at the rate of 40 cents per day. The convict, in this action, has sued the appellant for the value of his labor between the date when, under the legal part of the judgment sentencing him to hard labor, he was entitled to his discharge, and the date on which he was actually discharged. (2) The second count of the complaint is in the following language: “The plaintiff claims of the defendant the sum of $100 due for and on account of work and labor done for defendant by plaintiff at defendant’s instance or request, on, to wit, February 3, 1909”—and we are of the opinion that the plaintiff was, under the undisputed facts, entitled to recover under that count. We find nothing in the evidence from which it can be inferred that the appellant paid Jefferson county for the time during which the appellee performed the work for the value of which this suit was brought, and in this case the judgment of conviction showed exactly when the convict’s sentence to hard labor expired. These facts differentiate this case from that of Thompson v. Bronk, 126 Mich. 455, 85 N. W. 1084. In the case of Sloss Co. v. Harvey, 116 Ala. 656, 22 South. 994, the period during which the convict was, on Sundays and holidays, required to work was a period during which, under a lawful sentence, the Sloss Company had the legal custody and control-of the convict. In that case the plaintiff’s cause of action arose by reason of the violation by the defendant of the terms of a statute prohibiting the working of convicts on Sundays and holidays, and it also arose during the period when the defendant was lawfully entitled to the custody of the convict and to the fruits of the labor of the convict. This court was therefore of the opinion that the plaintiff’s cause of action was in reality for a breach by the de [55] fendan-t of a statutory duty which the defendant owed the plaintiff, and not for the breach of any contract either express or implied by law. In the instant case the convict was required to work at a period when he had ceased to be a convict, and this fact was really shown by the judgment of conviction. There is therefore a broad distinction between the instant case and the case of Sloss Co. v. Harvey, supra. The law definitely fixed the exact date upon which this convict’s term expired, and any labor which the appellant required him to perform after that date was without warrant of law, at a time when the appellant had no legal right to the custody of the convict, and at a time when the law may well raise an implied contract to pay him for the value of his services. (3) In this case the appellee simply asks that he be remunerated for services which, with the knowledge, consent, and under the requirements, of the appellant, he has performed at a time when appellant had no right to require such services. The appellant, we think, is not in a position to show its tort for the purpose of defeating the plaintiff’s right of recovery. The plaintiff in count 2 has not sued the defendant for false imprisonment, but for the value of labor which the defendant has required him to perform, and for which neither the plaintiff nor any other person has been compensated. The appellant “must be presumed to have assented to the performance of the labor, and, being benefited thereby, the law implies a promise to pay what it is reasonably worth.”—Patterson v. Prior, 18 Ind. 440, 81 Am. Dec. 367; Patterson v. Crawford, 12 Ind. 241. (4) The proposition announced by appellant in its brief that “a ministerial or executive officer is not liable in an action of false imprisonment when he- acts under a process regular on its face” is familiar.—Emerson v. Lowe Mfg. Co., 159 Ala. 350, 49 South. 69. [56] Count 2, as already stated, is not an action for false imprisonment, but for tbe value of work done by tbe defendant for tbe plaintiff. Tbe work may have been performed while tbe plaintiff was illegally restrained of bis liberty by tbe defendant, but nevertheless tbe work was done, tbe defendant willingly received tbe benefits of tbe work, and tbe law raises an implied contract to pay for tbe work.—Patterson v. Prior, supra; Patterson v. Crawford, supra. (5) Tbe defendant seems to have objected to tbe allowance by amendment of count 3 to tbe complaint. Tbe objection was a mere general obejction, and presents nothing for review.—Reynolds v. Dismuke, Adm’r, 48 Ala. 209. We find no error in tbe record, and tbe judgment must be affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.