Bernhardt v. Rice

98 Wis. 578 | Wis. | 1898

Winslow, J.

The first contention made by the appellant is that the present log-lien-law (Laws of 1891, ch. 139) only gives a lien to one who manufactures logs or timber into lumber, and that the evidence shows that the material which, was sawed at the mill in question was lumber, and that .'it was manufactured into dimension stuff, planks, wagon tongues, etc., and hence that there is no lien. The court •found, however, that the plaintiff’s work was performed in ■•manufacturing logs and timber into planks, dimensions, wagon tongues, etc. While the evidence is very meager on the ¡point, we regard it as sufficient to warrant the finding. The plaintiff’s evidence was uncontradicted, and he states that, •after the mill'started to run, he took care of it and did the .filing, and that after he commenced to do the filing the mill was in operation cutting lumber; that there were manufact>ured inch and two-inch hemlock lumber, chair stock, wagon tongues, and the like; and that this was the lumber upon which he claimed a lien. In the absence of all other evidence, we think the reasonable inference from this testimony is that the lumber on which the lien is claimed was out from logs or timber; so this contention must be overruled.

1 The appellant’s second contention is that the plaintiff lost his lien by the assignment thereof to G-raebel, who had no claim for a lien upon the property. It seems probable that á log lien is not assignable under sec. 3316, R. S. 1878,, which makes a claim for lien under ch. 143, R. S. 1878, assignable. Although this chapter contained provision for log liens, the entire subject of such liens was revised and ■codified by independent subsequent legislation, and the former provisions contained in the Revised Statutes repealed. ■See Laws of 1889, ch. 413, and Laws of 1891, ch. 139. The last of these laws is not an amendment to ch. 143, R. S. L878, but is an independent chapter, and in it specific provision is made for assignment of time checks and time •orders, as well as of log-lien claims generally; but the assignment of a claim not represented by a time check or time •order can only be made to persons who claim a lien upon the same property. Under familiar principles, these provisions, being specific, seem to limit and control the general ■provisions contained in sec. 3316 of ch. 143, R. S. 1878, especially in view of the fact that the present log-lien law is not ■a part of ch. 143. However, we do not regard the agreement with Graebel as an assignment or transfer of the right to a lien, within the meaning of the rule laid down in Tewksbury v. Bronson, 48 Wis. 581. Vhile the language of the agreement is that of an assignment, it will be readily seen that the plaintiff still retained the beneficial interest in the lien. The claim and lien w,ere not transferred to Grae-bel as his property to do with as he chose, but simply for the purposes of collection and application of the proceeds in a specified way for the benefit of Bernhardt. Graebel was to pay the expenses of collection, then pay certain of Bernhardt's debts, and pay the balance to Bernhardt. The legal effect unquestionably was that Graebel became a trustee of •certain express trusts, and that Bernhardt became the cestui que trust, and remained the real owner of the claim and lien, and could compel the execution of the trust duties of Grae-bel, all of which were for Bernhardt's benefit. It can make no difference that one of the debts to be paid was an indebtedness to Graebel himself. Graebel’s debt was not discharged or paid by the so-called “assignment.” Bernhardt ■could pay Graebel’s debt at any time, and thus extinguish any rights acquired by Graebel. Thus, it appears clearly that Bernhardt was the real party in interest, and had the power of controlling the claim at all times. The early cases in this court (Caldwell v. Lawrence, 10 Wis. 331, and Tewksbury v. Bronson, 48 Wis. 581) which hold claims for liens not to be assignable are cases of legal transfers by absolute assignment, and are clearly distinguishable from the case .at bar.

By the Court.— Judgment affirmed.

BaRdeen, J., took no part.