80 Mich. 254 | Mich. | 1890
Plaintiff owned a saw-mill, and carried on the business of manufacturing ’ lumber for other parties. Defendant Freyer contracted with the plaintiff to saw a •certain amount of logs for him at an agreed price per 1,000 feet. Plaintiff manufactured the logs into lumber, and piled it in his own yard. Freyer sold the lumber to defendants Champion and Hayward while it was in plaintiff's possession, in his mill-yard. Plaintiff was not paid for sawing the logs, and thereupon filed a statement •of lien under Act No. 229, Laws of 1887. He commenced an attachment suit in accordance with the provisions of this act, attaching a portion of the lumber to secure his lion. The defendants were all duly' served •with process. They appeared, gave a bond to release the property, and the case was tried upon the plea of the general issue.
The principal contention of defendants is that Act No. 229 does not apply to manufacturers who retain posses
“Any person or persons who perform any labor or services in manufacturing lumber * * * . shall have a lien thereon for the amount due for such labor or services.” '
This language is entirely free from ambiguity. It expressly gives a lien for manufacturing. There is nothing in the- statute showing any intention of the Legislature to limit it to laborers who were not entitled to retain possession, and who had no lien until one was created by statute. The fact that plaintiff had a lien at the common law is of no consequence in the face of this plain provision. It is entirely competent for the Legislature to provide an additional remedy to one already existing.
We are aware that there is a conflict between the cases of Shaw v. Bradley, 59 Mich. 199 (26 N. W. Rep. 331); and Kieldsen v. Wilson, 77 Id. 45 (43 N. W. Rep. 1054). But we adhere to the rule laid down in Shaw v. Bradley, and overrule Kieldsen v. Wilson.
In his statement of lien, plaintiff uses this language:
“But I do not release my lien for said saw bill, which I have by virtue of my possession of said property, by filing this statement of lien.”
Defendants contend that by this he waived his statutory lien. It might well be urged that he waived his common-law lien by filing this statement under the statute; but he cannot be held to have waived his statutory lien, which he was then taking steps to enforce. When he commenced his suit by attachment, he clearly waived his common-law lien. He then gave up his possession, and voluntarily placed the property in the possession of the sheriff. Defendants then obtained the right, which they
Judgment affirmed, with costs.