215 P. 1099 | Mont. | 1923
delivered the opinion of the court.
The plaintiff brought action against the defendants in claim and delivery to recover certain sheep alleged to be in the possession of the defendants, the plaintiff averring that he is the owner and entitled to the possession of such sheep, and that the defendants “unlawfully and wrongfully and without the consent of the plaintiff retain possession of the said sheep.” The appellant Joe Heeer filed a separate answer, wherein he admitted that the plaintiff owned the sheep, and possession of them held by the defendants, but denied that
The plaintiff demurred to defendant’s answer generally for failure to state facts sufficient to constitute a defense; and specially because the so-called separate and further defense “is ambiguous, unintelligible and uncertain, in that unless it is shown that the defendant was an independent pperator and contractor owning, controlling and using his own feed and feeding place, he cannot claim or hold a lien for herding, feeding or pasturing the sheep in question”; and that it cannot be told or determined from the answer whether the defendant claims as he alleges under a contract entered into with the owner of the sheep “to herd, keep and pasture” them, or whether he was to be paid «$100 per month wages as a herder, for his services in herding the sheep.
The demurrer was by the court sustained. Judgment was thereupon entered in favor of the plaintiff and against the defendants for recovery of possession of the sheep, and costs fixed at $15.50. The appeal is from the judgment.
Section 5805 of the Revised Codes of 1907 provides: “Every person who, while lawfully in possession of an article of personal property, renders any service to the owner thereof by labor or skill employed for the making, repairing, protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service. A ranchman, farmer, agister, herder, hotel-keeper, livery, boarding or feed stable keeper, to whom any horses, mules, cattle, sheep, hogs or other stock are intrusted, and there is a contract, express or implied, for their keeping, feeding, herding, pasturing or ranching, has a lien upon such stock for the amount due for keeping, feeding, herding, pasturing or ranching the same, and is authorized to retain possession thereof until the sum due is paid, and may enforce his lien as in the ease of a pledge.”
As first enacted, and before any amendment, it read: “That any ranchman, farmer, agistor, # * * or herder of cattle, tavern-keeper, or livery-stable keeper, to whom any horses, mules, asses, cattle, or sheep shall be intrusted, and a contract for their keeping be entered into between the parties for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, asses, cattle, or sheep for the amount that may be due for such feeding, herding, pasturing, or ranching, and shall be authorized to retain possession of such horses, mules, asses, cattle or sheep until the said amount is paid: Provided, that the provisions of this section shall not be construed to apply to stolen stock.” (Sec. 1394, Div. 5, Comp. Stats. 1887.)
Construing the statute before amendment, this court has said: “Under this statute, before the lien comes into existence, the cattle must have been intrusted to the party claiming them, and there must have been a contract between the parties for their -keeping. Whether the contract for keeping be for the purpose of feeding, herding, ranching, or pasturing, there must be a contract for the keeping. There must be a delivery of possession and a contract for the keeping for one purpose or the other, before a lien is created. Delivery of possession under a contract to drive cattle from one place to another would not be a contract under the statute for their keeping. * * * The statute was enacted to protect those persons who have a place or places for keeping and caring for the stock named therein and who contract for such keeping at
The opinion thus expressed by this court in territorial days through Mr. Chief Justice Wade, in the Underwood Case, respecting the proper interpretation of this statute, is in accord with our views. Clearly it was the intent of the lawmakers to give a lien on livestock only when the owner, or person in lawful possession thereof, delivered them into the custody and control of another to be cared for under contract, express or implied. The statute was intended to apply to those to whom the care, custody, control and responsibility therefor, is by the owner or person in lawful possession intrusted. It was not intended to include mere wage-earners or employees of the owner, as their possession is that of the owner; their responsibility in caring for the herd is that of their employer. The statute is intended to give a lien to the ranchman, farmer, agister, herder, hotel-keeper, livery, boarding or feed stable keeper intrusted with the independent responsibility under contract to care for such animals. To entitle the class of persons mentioned to such a lien for the care of animals, they must be independent contractors, not the servants or employees of a master. They must be bailees of the particular property. If the defendant Hecer may have under this statute a lien on the sheep by him herded on the public domain as the owner’s employee, then every farm-hand would also be entitled to a lien on the corn he husks, the wheat he cuts, the horses he feeds, or the cows he milks. This was not the legislative intention.
The general rule is thus. aptly stated in Ruling Case Law as follows: “In the absence of statute or special contract secur
On the face of defendant’s answer, he was without legal standing, and the demurrer was properly sustained.
The judgment is affirmed.
Affirmed.