107 Wis. 611 | Wis. | 1900
1. The first and most important question raised by the demurrer is whether the services set forth are within the description of those for which sec. 3329, Stats. 1898, con
In Young v. French and Winslow v. Urquhart it was held that a cook who, as one of a gang of men engaged directly upon the logs, in the one case in cutting, and in the other in driving, cooked the food for the others, was entitled to a lien for his wages, the court saying in the latter case: “ He performs services in cutting and driving such logs within the meaning of the statute, as much as those who use the ax, the saw,*’or the team to the same end.” In Bradford v. Underwood L. Co., supra, claim for lien was made by one who contracted with the contractor for log driving to supply board to the latter’s men. The court held him not entitled to a lien, for the reason that he was, in effect, “ furnishing supplies,” which were denied a lien by express statute. It was said: “ Only he who cooks the food for those employed to do work upon the timber, where the provisions are supplied by the employer, is given a lien.” This rule obviously would have as well excluded the plaintiff’s cook, who performed the services, as it did exclude the plaintiff himself from lien. In Minton v. Underwood L. Co., supra, plaintiff, who had been one of the gang engaged in driving the logs, put in his last day in gathering up the tools which had been used on the
In Maine, under a statute much like ours, it was held that Avork about the camp in filing saws, repairing sleds, keeping time, and being generally useful was not within the designation of either “ cutting, falling, or hauling.” Kelley
The general rule of demarkation which fairly results from the cases thus far decided, and which will effectuate the legislative purpose, liberally construed, may be stated to be that services of almost any character which are performed as a part of, and as mere incidents in, the work for which a lien is expressly given, should be protected, although the same kind of services, performed independently of the lien-able work, are not entitled to lien. Thus, an axman is none the less engaged in cutting or felling timber or logs while replacing a broken ax helve, and probably the detailing of one of the cutting gang to the doing of such work for.all the others would not exclude him from the category of those engaged in cutting or felling. On the other hand, one employed out of the logging season, and not in connection with any logging job, to put in repair generally his employer’s axes, could not fairly be said to have performed services in felling all the timber which might be cut thereafter with those axes. Such a latitudinarian construction would logically extend liens to the men who make the axes or the wagons which may be sold to the logger, an,d could hardly stop short of those who forge the steel or even mine the ore therefor. Of course, such an interpretation would be absurd, and, instead of being liberal to those whose labor actually produces the logs or lumber, would defeat their security, by burdening the product of their labor with liens to more than exhaust its value.
Another limitation which is already quite well established by our own decisions is that expressed in Basshor v. B. & O. R. Co. 65 Md. 99, and in Kendall v. Hynes L. Co. 96 Wis. 661, namely, that services rendered in preparation, improvement, or permanent repair of a plant with which the lien-able work is to be clone are not a part of that work.
2. Another defect or insufficiency pointed out as ground of general demurrer is that the complaint fails to allege-that the appellants are or either of them is a corporation, and, if so, where incorporated, in compliance with sec. 3205, Stats. 1898. That statute provides^ “In an action by or-against a corporation the complaint must aver that the plaintiff or defendant, as the case may be, is a corporation. If it was incorporated under the law of this state, that fact must be averred; if it was not so incorporated, an averment that it is a foreign corporation is sufficient.” That the appellants are intended to be sued as corporations sufficiently appears from their names. Brauser v. New England F. Ins. Co. 21 Wis. 506. That being so, the complaint fails to-comply with the requirement of the statute. How such in
By the Court.— The order of the circuit court is reversed, and the action remanded with directions to sustain the demurrer of the appellants.