107 Me. 481 | Me. | 1911
The plaintiff brought against her husband an action of assumpsit upon account annexed. In the declaration she alleged that she "at the special instance and request of the said defendant labored for him, the said defendant, at cooking for the said defendant and persons employed by him and engaged at cutting and hauling” certain specified logs and lumber. The logs and lumber were attached upon the writ, and notice thereof given the owner of the logs. The owner appeared in answer thereto.
At the time set for trial the plaintiff discontinued as to the personal defendant, who then and at the time of rendering the services sued for was her husband, and she proposed to proceed only against the logs and lumber attached. The presiding Justice ruled, in effect, that upon the allegations in her declaration and the admitted fact of coverture, the plaintiff would not be entitled to judgment against the logs and lumber, and ordered a nonsuit. The plaintiff excepted.
The plaintiff relies upon the comprehensiveness of the language of the lien statute, R. S., ch. 93, sec. 46, which is as follows:—
"Sec. 46. Whoever labors at cutting, hauling, rafting or hauling logs or lumber, or at cooking for persons engaged in such labor, . . . has a lien on the logs and lumber for the amount due for his personal services. . . . Such liens..... may be enforced by attachment.”
"Whoever” is, as claimed by the plaintiff, a very comprehensive term but it has been held that as used in the statute it does not include a contractor, though he labors personally at the cutting, or hauling, etc., Littlefield v. Morrill, 97 Maine, 505. It is evident, also, that it cannot reasonably be held to include trespassers, or persons employed by trespassers, or persons cooking for such laborers. We think it evident also, from the whole statute providing for such liens and their enforcement, that the lien is only annexed to such labor as creates an enforceable claim against some personal or corporate defendant "for the amount due for his (the*483 laborer’s) personal services.” There is no provision for the enforcement of the lien claim by simple process in rem. The only provision is by suit against the employer of the laborer, upon the writ in which suit the logs or lumber may be attached. (R. S., ch. 93, secs. 61 and 64 inclusive). There is no provision that they can be attached upon any other process or in any other way. True, after bringing suit against his employer or employers "the plaintiff may discontinue as to any defendant” and recover judgment against the property (sec. 64), but it is apparent from the whole statute that the suit must have been begun against a defendant against whom the plaintiff had a right of action to recover his wages. As said by this court in the case of a lien upon buildings imposed by the same chapter, (Farnham v. Davis, 79 Maine, at page 285). "There must be a suit against the party promising, upon which the property benefitted may be attached. The contract, whether expressed or implied, is the principal. The lien is the incident. The lien must be enforced along with the contract. ”
Did the plaintiff have a right of action against her husband for her personal services in cooking for him and the men employed by him? She urges that she had under the statute R. S., ch. 63, sec. 3, as construed in Tunics v. Grover, 57 Maine, 586. The statute is to the effect that a married woman "may receive the wages of her personal labor, not performed in her own family, maintain an action therefor in her own name, and hold them in her own right against her husband or any other person.” The decision in the case cited was that in such a suit for her personal labor against a third party she could attach by trustee process property of the defendant in the possession of her husband. Neither the statute nor the decision goes to the extent of authorizing a suit by a wife directly against her husband for services performed by her for him. The question, however has been settled in the late case Perkins v. Blethen, 107 Maine, 443, where it was held that not even an assignee of a claim of a wife against her husband could maintain an action against the husband. As stated in the opinion in that case, the husband is immune from actions at law to enforce any contractual claim of the wife against him, at least during coverture.
Exceptions overruled.
