Engi v. Hardell

The following opinion was filed'October 18, 1904: Siebeckee, J. It is claimed that the circuit court erred in finding that there is due plaintiff the sum of $11.46 for his services rendered in manufacturing lumber for defendants, at the sawmill of the Pelican Manufacturing Company. This-is maintained upon the ground that the laborers were paid in full for services after May 15th, and that the services prior' to this date were mainly devoted to the repair of the mill property preparatory to manufacturing the lumber. An examination of the evidence discloses, however, that the manufacturing of the lumber began on the 7th of May, and was. prosecuted continuously to June 19, 1903, with slight interruptions at irregular intervals for such repairs of machinery as are usually incident to such a business. Under the circumstances the services rendered in repairing the mill are a mere incident to the work of manufacturing the lumber, for which a lien is given, and are protected under the liberal interpretation of the statute. Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764. [411] Under tbe evidence no more than two days’ services, which were rendered prior to the period for which he had a lien on the lumber manufactured for defendants, could have been in-' eluded in this finding. If this amount ($3.50) is deducted from the sum found due, it would still leave a balance due' him under his claim for a lien. But this deduction should not be made, because he was entitled to have this item for service applied in part payment of his board bill due the-Pelican Manufacturing Company, as employers, which waste be offset against his earnings. Plaintiff does not controvert defendants’ claim that the amount due for boarding the men was to be deducted from their earnings. Under such circumstances the court properly applied whatever amounts were' due them for which the laborers had no lien in payment of their board bills. It is further contended that neither plaintiff nor those who-assigned their own claims to him had any lien on the lumber-manufactured for the defendants C. Conro & Co., Heyn, and Hardell for the reason that the amounts due the Pelican Manufacturing Company for manufacturing this lumber had been paid by the defendants and received by the laborers for work done on this lumber. It appears that the laborers.were paid these sums as claimed, and they acknowledged, by written receipts, that such payment was in full for all labor performed by them on the logs of each of these defendants, respectively, or in full payment for labor on lumber and lath at the mill. Such receipts constitute evidence of payment in full by defendants, respectively, of the amount due the laborers for-manufacturing these logs into lumber, and that they received' it for services rendered on the material of these defendants but the receipts do not expressly show that the laborers receiving this money agreed to release their claims for a lien upon the lumber manufactured during the period of their service. Applying this conclusion to the facts and circumstances of the case, we cannot say that the trial court erred in holding that the amounts covered by the receipts were re [412] ■ceived for services, and that they were no release of the laborers’ right to a lien on the lumber. Seeger v. Manitowoc S. B. Works, 120 Wis. 11, 97 N. W. 485. The findings of the trial court of the amounts due on the claims of the laborers, that they were assigned to plaintiff as alleged by him, and that liens were properly filed within the period required by the statute, prior to the commencement of this action, are all supported by the record and the evidence. The defendant Rhinelander Iron Company purchased “slabs” of the milling company, which were the product of the logs manufactured into lumber at the mill. The trial court held that this product of the logs is lienable under the 'laborer’s lien statute. In support of this finding we are cited to cases which hold that the term “lumber,” as used in the ■statute, includes “shingles” and “lath.” That these products of the logs are treated as lumber in commerce and trade is a matter of common knowledge, but this does not seem to be the fact with respect to- “slabs.” Nothing in the case tends to show that they are used or treated as the other products manufactured out of logs, nor are they commonly treated or classed as “lumber or timber.” We are led to the conclusion that “slabs” are not included in the material designated as “lumber and timber,” and therefore not subject to a lien for services under the statute. By the Court. — That part of the judgment which awards a lien on the “slabs” owned by the Rhinelander Iron Company is reversed; in all other respects the judgment is affirmed. The defendant Rhinelander Iron Company is not to be liable for nor to recover costs upon this appeal, but ■plaintiff is to recover his proper costs against the other defendants. A motion for a rehearing was denied January 10, 1905.