71 Me. 113 | Me. | 1880
The plaintiffs in these actions, being employed by the defendants for that purpose, respectively labored in the" cutting and hauling of logs on Jerusalem township, in the winter •of 1876-77 ; and when they quitted work, each received a due bill signed by the defendants, in legal effect a promissory note not negotiable, for the amount due him, — "it being for labor done in the woods for us the present winter, payable in April next.” The defendants were operating on the township for .'Moseley, Wheelwright & Co., by whom they were employed to ■ cut and haul logs by the thousand. The plaintiffs not being paid for their labor, these suits were commenced in June, 1877, and : a lien upon the logs claimed therein, and the logs were seasonably •attached. Moseley, "Wheelwright & Co. procured receipters for the logs, and subsequently having gone into bankruptcy, their .-assignee now appears to claim the logs, and resist the rendition <of any judgment to enforce the lien thereon, because, he says, 1 the lien ceased to exist before the commencement of the suit, by .-reason of the fact that the plaintiffs respectively sold their claims 'to other parties, and ceased to have any interest in the enfórce-ment of the lien. Prescott’s claim is represented by one due bill ■which he appears to have sold about the time he came out of the ■woods, in February, to one Winter, a trader in the vicinity of 'the operation, to whom he subsequently gave a written assignment of the claim, having indorsed the due bill at the time of its sale and delivery.
Murphy worked at two different periods during the season, received two of the non negotiable due bills, and got one of them ■cashed by Winter, and the other by one Parker, merely placing ’his name on the back of the due bills when they were sold and
The case shows that in the present instance a large number of the laborers’ claims were thus taken at a small discount by Winter, presumably relying on the lien to secure payment; and the probable extent of the practice among laborers in lumbering operations, of realizing their dues at an early day in this mode, makes it desirable to have the point definitively settled.
The groundwork of the claimant’s argument is in the position he takes that the laborer has ceased . to have any interest in the collection of the sums due for his work, and that the lion, being but a personal right, to be enforced for his benefit only is destroyed when a third party has paid him for his claim.
In the present case, inasmuch as the laborers indorsed the non negotiable due bills which were given them in blank to the parties who advanced the money for them, the claimant’s position cannot be maintained if it be true as laid down in the text books that "an indorsement in blank of a note not negotiable is an undertaking that it may be collected of the maker by using due diligence, which consists in demand on its becoming due; and in case of non payment, the maker being solvent, in immediate suit with attachment where it is allowed, followed by the most vigorous measures for collection.” Bayley on Bills, 2d Am. ed. 152, citing Prentiss v. Danielson, 5 Conn. 175; Huntington v. Harvey, 4 Conn. 124. In Seymour v. Van Slyck, 8 Wend. 403, it was held that the indorser of a note not negotiable has no right in an action by his indorsee against him, to insist upon previous demaiid and notice "because his indorsement is equivalent to a guaranty.” If these plaintiff's are liable as guarantors of the due bills, they have just as much interest in the enforcement of the lien as if they never had received the money on. them from anybody.
But, aside from this, and independent of any guaranty by the-laborer that the amount due him is collectible by the use of due
If the lien can be enforced in his name by one who has assumed this risk and burden for him, another object of the statute, which is to make his pay prompt as well as secure, will be materially advanced. Murphy testifies that he considered the bills good, only he "did not want to wait around there.”
We think it would be laying an unnecessary burden upon the laborer for whose benefit the statute was designed, to say that he should not avail himself of the security which the ■ statute gives him in the way most beneficial to himself, and if he can better himself by giving to an assignee the right to procceed in his name instead of "waiting around there” for the slow process of the law, we see no reason why he may not do it without forfeiting the lien from which he derives that advantage.
The claims of laborers secured by a statute lien, stand substantially in this respect upon the same footing as those of mechanics.
The weight of authority and reasoning is in favor of the assignability of the lien of a mechanic and the right of his assignee to assert his claim in the same manner and to the same extent that the mechanic could. Kerr v. Moore, 54 Miss. 286, citing Laege v. Bossieux, 15 Gratt. (Va.) 83; Tuttle v. Howe, 14 Minn. 150; Davis v. Bilsland, 18 Wall. 659; and other cases of like purport and effect. See also, Hull of a new of ship, Daveis, 199. The Sarah J. Weed, 2 Lowell, 556. Nor is there anything adverse to this doctrine in our decisions, cited in behalf of
The point decided in Ames v. Palmer, 42 Maine, 197, was simply that a trespasser could not interpose the lien of a third party as a common carrier upon the goods which were the subject of suit, in which lien lie had no interest or concern as assignee or otherwise, to bar the action of the general owner against himself for a tortious interference, upon the ground that the plaintiff must show a present right of possession. The cases have no tendency to sustain the doctrine in support of which they are cited.
These are the suits of the laborers, prosecuted in their names by those to whom they gave authority to enforce their rights in the collection of the sums due them for their labor, when they received their money and made over their claims. It is of no importance to the owner of the logs, to whom the money now goes, if it discharges the laborer’s lien. It must be paid once to the laborer, or the man who legally represents him, unless it is released or discharged. There is the same difference that there is between the discharge and the assignment of a mortgage. When ail assignment has been made by the laborer of his interest, the courts will protect the interest of the assignee as they will that of the assignee of any other lion-negotiable chose in action — ■ let in all equitable defences which are open between the original parties to the contract, and give the plaintiff in interest the same remedy which the plaintiff of record may have. Nor does it make an}r difference that there are two plaintiffs in interest in the suit of Murphy. There is hut one suit. Neither the debtors nor the log owners are subjected to any additional expense or trouble, nor can it concern them how the money, which it is their duty to pay, is disposed of, any more than it would whether the laborer paid two creditors or one with the proceeds of his work.
Lest it should be said that the punctuation, though intelligible to the officer, as appears by his return, did not sufficiently designate the logs as bearing, not' one mark of twelve letters three of them thrice repeated, but certain logs each bearing a mark of four letters varied as specified, plaintiff moved for leave to amend by twice inserting the words, "and certain logs marked” in the description of the property which was ordered to be attached. The claimant excepts to the allowance of this amendment and insists that it is not by law amendable, and at all events, if allowed, vacates the attachment so that no judgment should go agamst the logs. The claimant relies upon Stuart v. Morrison and logs, 67 Maine, 549, disregarding the radical difference that in that case four or five different lots of logs belonging to as many different owners were attached, when there was nothing whatever until you reached the parol testimony to indicate that it was other than one lot, each log of which bore all the marks mentioned; while in the present case the logs were substantially one lot, the product of one operation and all belonging* to one firm, though the final letter of the marks was not the same on all of them. If there was room for a wrong interpretation, in view of the punctuation between the several marks mentioned, we think it was competent to exclude it by amendment. It comes fairly within the power given by the statute to amend circumstantial errors or defects when the person and case can be rightly understood. It is very clearly not an amendment introducing a new cause of action. The facts and case differ so widely from those in Stuart v. Morrison, that while it may be doubtful whether an amendment was needed, it was plainly within the power of the presiding judge to allow it and the exceptions to its allowance
Judgment for the plaintiffs, respectivelyy, for the amount of their due bills and interest from the time when they fell due against the personal defendants and against the logs attached.