36 Ind. App. 408 | Ind. Ct. App. | 1905
In the Laporte Superior Court this suit was begun by appellee against appellant and a number of others, to enforce payment of thirty-nine claims for work and labor performed by as many different people in the construction of certain abutments, walls, .bridges and embankments and making excavations, etc., for a roadbed and tracks in the construction of a railroad through Laporte and Porter counties in this State, by the foreclosure of an alleged mechanic’s lien held by appellee, covering appellant’s roadbed and right of way, and appurtenances thereto belonging. The facts leading up to, and upon which appellee claims to be the owner of said claims, as also the proceedings under which he claims to be vested with such lien on appellant’s property, appear in the finding of facts.
The cause was tried upon an amended complaint, consisting of two paragraphs; and, as the special findings contain the material facts necessary to present all the material questions of law here arising, we omit a synopsis of the facts as averred in the complaint and briefly state the facts as they appear in the special findings: (1) On the
(2) On April 24, 1903, defendant entered into a contract with the Marquette Construction Company to grade, build embankments, make excavations, build bridges, trestlework, works of masonry and other structures on said right of way, preparatory for defendant’s railroad track. Pursuant to the terms of said contract, on the same day, said Marquette Construction Company sublet said work to McArthur Brothers Company. Subsequently, and pursuant to said contract between appellant and the Marquette Construction Company and between the Marquette Construction Company and McArthur Brothers Company, said McArthur Brothers Company contracted with the Tefft-Boss Engineering Company, a partnership composed of- Henry B. Tefft and William C. Boss, for the construction of concrete work and masonry for bridges at certain points in Michigan township, Laporte county, Indiana.
• (3) Said Tefft-Boss Engineering Company commenced and completed said work.
(4) In accordance with the terms of said contract the Tefft-Boss Engineering Company employed the several defendants, in the complaint mentioned as “laborers,” who performed work and labor in the erection of said concrete work and excavations in said Michigan township, Laporte county, of the value of $348.92, which sum was due and payable on the 20th of September, 1903, and is still due and unpaid.
(6) Within sixty days of the doing of said work by said “laborers” the plaintiff filed 'in the office of the recorder of Laporte county, Indiana, his notice to said Pere Marquette Railroad Company of Indiana, and all others concerned, of his intention to hold a lien on the roadbed and right of way, together with all appurtenances thereto belonging, and of the right of way, franchises and roadbed of said Pere Marquette Railroad Company of Indiana situate in Laporte county, Indiana. Said notice stated that plaintiff claimed said lien by reason of his being such assignee as aforesaid. Said-notice was so filed for record on the llth of September, 1903, and was duly recorded, and plaintiff has been compelled to employ an attorney at a cost of $100.
(I) Said “laborers” have no titles or interest in said claims or in said liens.
(8) Plaintiff commenced this action on the 24th of September, 1903j and within one year of the filing of the notice of said lien.
(9) The defendant Pere Marquette Railroad Company of Indiana continues as aforesaid in the possession and ownership of said right of way and franchises of said railroad company.
(10) “The plaintiff has and holds a valid and subsisting lien on said right of way and franchises and appur
“(11) Said plaintiff is entitled to recover interest on his claim herein from the 20th day of September, 1903, and is entitled to have said lien foreclosed.
“(12) The work and labor described in these findings as having been performed, is the same work and labor described and alleged as having been performed in said notice of lien as aforesaid.
“(13) Said right of way of said defendant Pere Marquette Railroad Company of Indiana is a part of the right of way and station grounds of said company, and is used by said company in the prosecution of its business as a common carrier of freight and passengers, and is necessary to the proper and successful operation and conduct of its corporate business as such common carrier.
“(14) The lien aforesaid can not be foreclosed against the same, and the property sold for the payment of said claim without interfering with the rights and interest of the public therein. By reason of such facts the plaintiff, if he is entitled to recover, ought to be entitled to recover a personal judgment against said defendant railroad company for the sum so found due.”
Upon the above finding of facts the court stated the following conclusions of law: “(1) The plaintiff has a valid and subsisting lien on the right of way and franchises of said defendant Pere Marquette Railroad Company of Indiana, situate within the limits of Laporte county, Indiana, and upon all works and structures, grading, embankments, excavations for- tracks, bridges, trestle-work and works of masonry that are upon such right of way, and such franchises within the limits of said Laporte county, Indiana, in the amount of $453.28. The plaintiff is entitled to have said lien enforced and foreclosed,
“(3) The defendants, except the Pere Marquette Eailroad Company of Indiana, have no interest in this controversy.”
Upon the conclusions of law thus stated, the court rendered a personal judgment against defendant Pere Marquette Eailroad Company of Indiana for $153.28. Thereupon said defendant moved to modify said judgment so as to eliminate therefrom all that portion of the same as makes the judgment personal against it, which motion was overruled, and exception reserved. Said defendant then filed its motion for a new trial, assigning as reasons therefor: (1 and 2) That the decision of the court is contrary to law and not sustained by sufficient evidence; (3 and 1) each of the findings is contrary to law and not sustained by sufficient evidence. This motion was overruled and appeal prayed and granted.
It might be well here to state that by the averments of the complaint it appears that, at the time of filing the same, the railroad was not completed and not in operation in Laporte county; but this variation as to this allegation in the complaint and the finding of facts on that subject does not affect the first and ruling question here presented, not only by the demurrer to the complaint, but by the mo
We are now considering the question as if the persons who actually performed the work and labor, as stated in-the special finding of facts, were before us, and for the time being eliminating the question of their right to assign their claim or the title, thereto or lien to appellee as assignee.
The contention of appellant is that a subcontractor in the second degree is not included in the class given a lien by §7265, supra, and that the laborers employed by such contractor have no better right to a lien than their employer. If this theory be correct, then this case must be reversed. We can not agree with appellant’s contention.
From the careful reading and study which we have given §7265, supra, it is our opinion that this statute expressly gives protection to all persons who actually perform work and labor in the construction of a railroad, or that part thereof, as expressly stated in the statute, regardless of whether it was performed under the supervision of the railroad company itself or any other person, company or corporation, by giving them a lien upon the right of way and franchises of such railroad corporation, provided such work and labor was performed in pursuance of some recognized authority originally emanating from or authorized by such railroad corporation. And the words “in pur
It is very difficult to harmonize the decisions of the various states, for the reason that each state seems to have adopted its own peculiar law and state policy. A review of the vast number of authorities upon the subject now under consideration would involve a critical statement of the facts of each case and the writing of an opinion of unnecessary length. However, we will refer to a case Or two which may furnish some light.
Sections 3314, 3315 R. S. 1898 of Wisconsin, give a lien to a principal contractor, subcontractor or employe of either, “who performs or procures to be performed any work or labor * * * for or in or about the erection, construction,” etc., of such improvements as are here involved; and the supreme court of that state, in construing the statute .in a lengthy and well-considered opinion, after clearly drawing the dividing line and pointing out the distinction between contractors, subcontractors, employes and laborers, and after referring to a number of decisions, says “there is no distinction between the term laborer and the term employe as regards the element of personal service,” and holds that a subcontractor and an employe belong to different classes as to their right to lien privileges, the former not being entitled to a lien while the latter is so entitled. Farmer v. St. Croix Power Co. (1903), (Wis.), 93 N. W. 830.
In Duignan v. Montana Club (1895.), 16 Mont. 189, 40 Pac. 294, on the question of a lien in favor of the subcontractor of a subcontractor under the Montana law providing: “All persons furnishing things, or doing work, as provided for by this chapter, shall be considered subcontractors, except such as have therefor contracts directly with the owner or proprietor, his agent or trustee,” the provision of the chapter being: “Every mechanic, builder,
In Farmers Loan, etc., Co. v. Canada, etc., R. Co. (1891), 127 Ind. 250, 257, 11 L. R. A. 740, it is said: “We do not believe that a laborer, working by the day, or a material man, who delivers ties or lumber, is a subcontractor within the meaning of our lien law.” From the syllabus to the case of Mundt v. Sheboygan, etc., R. Co. (1872), 31 Wis. 451, we take the following: “Section 57, Tay. Stats., 1051, provides that whenever any laborer upon any railroad * * * shall have a just claim or demand for labor performed on such railroad, against any person being contractor on such railroad with the railroad company, such railroad company shall be liable to pay such laborer, etc. Held, that the words 'contractor with the railroad company’ do not necessarily restrict the remedy to claims against persons who have contracted directly and immediately with the company; but they may be understood as describing all persons who, by means of laborers in their employ, prosecute work upon the railroad, under the primary direction and authority of the company, by virtue of any contract which connects them with the company, though indirectly, mediately or remotely.”
For other cases tending to support the theory of our conclusion, see Colter v. Frese (1873), 45 Ind. 96; Barlow Bros. Co. v. Gaffney (1903), 76 Conn. 107, 55 Atl. 582; Zarrs v. Keck (1894), 40 Neb. 456, 58 N. W. 933.
The persons who actually did the work in constructing the railroad, as averred in the complaint and as found by
“Tefft-Ross Engineering Company, Chicago........., 1903. No........ Mr..........has............Dollars for work done in the month of July, 1903, as follows: Hours worked........ Rate $................ Amount $................ Deduction: Board........ Commissary............ Orders............ Total deductions $............. Balance due $......... This time check is not transferable, and is due and payable at the office of Tefft-Ross Engineering Company, Michigan City, on the ........... 1903....................., Supt.”
These checks were all dated in July, 1903, and issued to the various parties with the blanks filled according to the amount due, hours worked, rate per hour, etc., and indorsed on the back by the laborer to whom issued, and delivered to appellee, who testified that he bought and paid for the time evidenced by these “checks.” And the evidence shows, without question or contradiction, that appellee purchased these checks at the suggestion and consent of the maker thereof. In our opinion the evidence was sufficient to show an assignment of the claims of such laborers, and to carry with it the lien. Midland R. Co. v. Wilcox, supra; McElwaine v. Hosey (1893), 135 Ind. 481; True-blood v. Shellhouse (1898), 19 Ind. App. 91.
We have carefully considered the evidence in this cause, and it clearly sustains appellee’s contention, and fully sustains the decision of the court.
Appellant in its argument relative to its motion for a new trial insists that special findings numbered five, ten, thirteen and fourteen are not sustained by the evidence.