103 Me. 198 | Me. | 1907
The above ten cases were tried together. In each a lien was claimed upon the logs attached for labor on and about them in a logging operation, carried on by the principal defendant, for Thomas Gilbert, the owner of the logs. The question in all of them was whether each plaintiff had a lien, and had perfected it in accordance with the statute. Upon this question the evidence was
.The logs cut and attached were marked "T” with the figure of a diamond and girdle and "G.” Gilbert became a party to the suit to protect his interest. Each plaintiff had a verdict for the amount due him for labor upon the logs, and establishing a lien upon them.
The cases are here upon motions for new trials and exceptions.
As to the motions. The writs commanded the officer to attach certain logs marked, and here was given a fac-simile of the mark, and after that was added in parenthesis ("T diamond-girdle G”) It is objected that the true name of the mark is "slue diamond girdle,” and that it is mis-named in the writ. Great stress is laid upon this by the counsel for defense, but in our view it is easily disposed of. The writ gave the correct mark. It was not necessary to give it a name. The addition of the name is surplusage. The true and actual mark upon the logs is correctly given in the writs, and the defendant’s logs with that mark were attached and are the logs upon which the liens were claimed. The mark identified the logs, and the name given to that mark is wholly immaterial. But if this were not so Cohn W. McEachern testified that Gilbert "looked the mark over as we were putting it on, copying it from the paper, and said it was correct, "T. diamond girdle G.” "He called it diamond girdle G.,” the name given in the writ. Gilbert does not deny this. It hardly lies in his mouth to say that the name he gave the mark is incorrect, upon the testimony of witnesses, some of whom give it one name and some the other.
It appears that defendant McEachern gave each of the plaintiffs orders upon Gilbert for the amounts due, and the holders, the laborers, sold these orders to the Moosehead Clothing Company, who thereby became the assignee of the claim for wages due the laborers, and also of the lien upon the logs for the labor done upon them, and may maintain an action thereon in the name of the laborers to enforce the lien. Murphy v. Adams, 71 Maine, 113 ; Phillips v. Vose, 81 Maine, 134.
But it is argued that the attachments were not perfected by the officer, in his return of the attachments to the town clerk, and that thereby the liens have been lost. The statute requires the officer to file with the town clerk not a full copy of his return upon the writ, but "so much of his return on the writ as relates to the attachment, with the value of the defendant’s property which he is thereby commanded to attach, the names of the parties, the date of the writ, and the court to which it is returnable.” The officer certifies he has done this, but this may be .contradicted by the actual return made, if that does contradict it. We have been furnished with only one of the officer’s returns to the town clerk, that in which Brogan is plaintiff, which contains everything required by the statute. It does not contain 'the statement that the logs by reason of bulk could not be removed, but the statute does not require this. The objections, to the returns to the clerk in the other suits do not impress us as of weight, and are not much relied upon by counsel. The verdicts are supported by the evidence.
As to the exceptions. Evidence was offered that the principal defendant drew orders upon Gilbert, owner of the logs, for the payment of the several sums due the plaintiffs, by order of Gilbert, and that he promised the principal defendant that he would see the orders paid. This evidence was admitted against objections by Gilbert, "because the actions were not upon the orders, but were an attempted enforcement of lien claims.” This is the only exception presented. The issue, as claimed by Gilbert, was whether there was a lien, perfected or not. The orders and the promise to pay them had no tendency to establish or disprove the lien, and, whether the evidence was admissible or not, it was absolutely immaterial and
The entry in each case must be,
Exceptions and motion overruled.