39 Mich. 594 | Mich. | 1878
Plaintiff in error recovered judgment against the Grand Rapids, Rockford & Greenville Railroad Company, which was organized in 1870, for arrearages due on a contract made in 1872 to construct a portion of its line. This contract embraced the usual items of construction, including earthwork, clearing, bridging, culverts, ties, timber, piles and other items. The whole indebtedness created was between $40,000 and $50,000, of which about $20,000 was paid. The judgment was for the remainder. Defendant Miller is found to have been a stockholder in 1872, but the amount of his stock is not found. Execution was returned unsatisfied on the judgment May 12, 1877, the suit having been begun on the 80th of March, 1876, and judgment rendered February 15, 1877, for $20,167.97 and costs.
The present suit was brought against Miller as a stockholder for his alleged personal liability June 9th, 1877. The court below held the individual responsibility of railroad stockholders did not exist in favor of contractors such as Peck and Brown were found to be. Error is brought on this ruling.
The chief position taken in the elaborate argument of the plaintiff in error is that the Constitution of 1850 introduced a provision giving a "claim against every stockholder for any labor done for his company, to whatever person the company immediately dealt with, and that a contractor is as much entitled to relief as the laborer would have been for work done in the direct employment of the corporation. It is also claimed that the statutes have secured the same remedy, and that a' law of 1877 restricting recovery by new and onerous provisions has no force to destroy the former right.
The constitutional provision is as follows:
The statute of 1871, which was in force when the contract was made and. performed, was in these words:
“ Sec. 8.' All of the stockholders of any such company shall be individually liable to an amount equal to the amount of stock held by them respectively, for all the labor performed, and also for all ties, wood, and supplies furnished for the company, but they shall not be liable to an action therefor until an execution shall be returned unsatisfied, in whole or in part, against the corporation, and the amount due on each execution shall be prima facie evidence of the amount recoverable, with costs, against any such stockholder; and every stockholder against whom any such recovery for labor shall have been had, shall have the right to recover the same of the other stockholders in said corporation, in ratable proportion to. the amount of stock they shall respectively hold.” Comp. L., § 2412.
A preliminary question is raised that these parties from the whole finding stood in the position of laborers rather than contractors, and thus avoided one difficulty claimed by defendant to preclude them from recovery. This assumption is based on the fact that it appears the work was done under an agreement which when reduced to writing and presented to the company was objected to and never signed, as variant from what they understood the contract to be, and the company in turn presented for signature to Peck and Brown a writing which they objected to for a similar reason, and the work was done without signing any contract.
The finding being express that the work was done under contract, and the facts stated making it equally plain that it was, the only dispute seems to have been, not as to what the- parties were willing to agree upon, but what they had agreed upon before. Such a contract actually carried out does not cease to be a contract because the parties differ as to its terms when they attempt to put them into writing. It was open to prpof, like all other matters of difference. It was no less a contract,
Two questions seem to arise in the outset, — ¿first, whether the liability under the Constitution for labor, which declares stockholders liable generally, is affected by the more restricted statutory liability; and second, whether contractors like those before us are within the law.
This action is brought under the statute, and not under the Constitution. If the constitutional provision Is sufficient to execute itself without legislation, It can only be by some proceeding in equity. There is no remedy at la¡w to do complete justice in such a case without some aid of statutes. The responsibility of the stockholder, as we held in Hanson v. Donkersley, 37 Mich., 184, is not primary, but collateral, and in a suit under the statute the statutory conditions must be fully complied with. This would affect the amount of recovery, if recovery is allowed, inasmuch as under the statute there is no liability beyond the amount of stock held by the defendant. In other respects the statute is broader than the Constitution in extending the liability beyond labor. But it follows the Constitution in declaring for whom the labor is to be performed.
The inquiry therefore arises 'whether the remedy for labor extends to the case of a contractor who has built a section of road.
As intimated in Brockway v. Innes, ante, p. 47, we can get very little assistance from adjudged cases in construing this language of the Constitution. But there can be no doubt, we think, that the main if not the only object of this provision .was to secure the claims of laborers whose wages are not usually very large, but whose means are not generally such that they can avoid
It does not necessarily follow that there can be no liability for labor to a person who in performing a labor service employs his own assistants and workmen. There are certainly very many cases where the work which is done by a contractor is labor in the proper sense of the term and is so understood. There are undoubtedly cases where the line may not be easily drawn. But in such a case as the present there is no difficulty. These contractors were to go upon the line of the proposed railway, and transform a certain section of it into the structure of a track, clearing away trees and stumps, raising an embankment, building bridges and culverts, piling low land, and laying timber and ties where they belong, and turning over to the railway company ready for the finishing additions something which was the result of
We do not see that there is any lack of cases for •the application of the constitutional provision after (excluding railway contractors.
It is much to be regretted that anybody should be injured or impoverished by relying on broken promises tof companies or stockholders. We are obliged however, to apply the law as we find it, and we do not think it applies to this case.
The judgment must be affirmed with costs.