6 Wash. 478 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
The respondents instituted a joint action against one James Y. Taylor to recover the amounts al
The complaint, in the several causes of action, alleges in substance that each of the respondents worked a certain number of months, or days, in securing saw logs, and that they ceased to labor upon the logs in question on the 3d day of December, 1890, but it nowhere alleges the number of days worked by each respondent upon the boom of logs upon which they seek to foreclose a lien, or the date at which they began to labor thereon. The lien notices were made a part of the complaint. It is shown by the record that each of the respondents was hired by Taylor to work in his logging camp by the month at a specified rate of Avages, and that Avhile so employed they performed labor in getting out other logs than those in controversy, and Avhich were rafted and perhaps disposed of and taken aAvay, before they ceased work under their contracts, and even before work was commenced upon the particular logs upon which the liens are claimed. The lien notices state that the labor and assistance therein mentioned Avas performed in obtaining and securing said logs, meaning the logs in dispute. And the appellants claim that there is a fatal variance between the allegations of the complaint and the notice and proofs. In other Avords, their contention is that it should have been alleged and proved that all of the labor
We do not so construe the law. Sec. 1679, Gen. Stat., provides that ‘ ‘ every person performing labqr upon, or who shall assist in obtaining or securing sawlogs . has a lien upon the same for the work or labor done upon or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. ’ ’ If that section stood alone there would be some force in appellants’ contention. But this provision must be read in connection with § 1690, which provides, in substance, that any person who shall bring an action to enforce his lien has a right to demand that such lien be enforced against the whole or any part of the sawlogs upon which he has performed labor, or which he has assisted in obtaining or securing, during eight calendar months next preceding the filing of his claim of lien, for all his labor upon or for all his assistance in obtaining or securing said logs during the whole or any part of the said eight months. The construction of the statute contended for by the appellants would render this latter section meaningless or nugatory, and would, in many instances, deprive the laborer of the benefit of the greater portion of his labor.
In cases where a portion of the logs have been lost, or disposed of by the owner, during the progress of the general business of logging, it would certainly be a harsh rule that would impose upon one who rendered necessary services in securing all the logs produced during the eight months’ time limit, or during the time of his employment, the necessity of ascertaining the exact amount due for labor performed upon the remainder, and then permit him to foreclose his lien only for that amount, although the
There is nothing in the statute requiring a laborer in a logging camp under a general contract of employment, to incur the expense and trouble of filing a lien as often as the owner of the logs for whom he works may see fit to “boom” a portion of them for his own purposes. All that is required is that the claim of lien be filed within thirty days after the close of the rendition of services, in which event it attaches upon all the logs upon which, or in the securing of which, the claimant performed labor, or rendered assistance, for a period of eight months prior thereto. That the claimant’s rights cannot be affected by
It appears from the record that at least three of the four respondents worked a portion of the time while employed by Taylor in constructing roads to be used, and which were used, in the transportation of logs'from his camp to the water, and that the value of such services was included in the amount for which they seek to foreclose their liens. By so doing the appellants urge that these respondents have mingled privileged with non-privileged claims, and thereby destroyed their liens as a whole. While not disputing the proposition of law that a lien claimant might so commingle claims for which no lien is given with those for which a lien is awarded, as to invalidate the lien even as to the unobjectionable portion of the claim, yet we do not think that this is a proper case for the application of the principle. To our minds it is plain that one who constructs a necessary road by which logs are taken from the forest to the mill, or to the water and afterwards to the mill, or to market, as much assists in obtaining and securing such logs as if he were engaged in cutting or sawing them. Saw logs can no more be “obtained” or “secured ’ ’ without proper roads by means of which they may be conveyed to some place where they may be utilized as such than they can be without axes or saws or any other of the various tools and appliances necessarily used in conducting a logging camp. One man may be exclusively engaged in driving a team used in hauling the logs, another in felling the trees, and still another in sawing the trees into convenient lengths, but they are each and all in contemplation of the statute engaged in the same business, namely, getting out saw logs. The statute is broad enough
It is claimed by the appellants that the fact that the court below found that there was due the respondents, or some of them, for their services, a less amount than was claimed in their lien notices, defeats the liens. We fail to discover in the record the testimony upon which the court based its conclusions in this regard, but assuming the fact to be as found, we do not think the liens should, for that reason alone, be declared invalid. There is nothing to show that either of the claimants willfully attempted to claim a lien for more than was justly due him, or that either of them did not state the amount of his demand after deducting all just credits and offsets, “as near as possible,” at the time of filing his notice in the auditor’s office. We are not willing to concede that innocent mistakes as to the exact amount due laborers for their hire shall deprive them of the benefit of a statute specially enacted in their interest. And, in this respect, we think we are in accord with the authorities under statutes analogous to ours. Phillips on Mech. Liens (2ded.), §356; 2 Jones on Liens, § 1413.
The record fails to show affirmatively that a formal default was entered against the defendant Taylor before the trial of the cause, but it does appear that the time for an
The trial court gave judgment in favor of the respondents for the sum of fifty dollars as attorney’s fees, and the appellants contend that the court erred in so doing for the reason that no testimony was offered to show the reasonable value of the services of counsel in this action. As a general rule, where the value of such services is alleged in the complaint, in order to recover, it must be proved, and this court, in effect, so held in Cowie v. Ahrenstedt, 1 Wash. 416 (25 Pac. Rep. 458). But in this case the appellants, in their answer, have admitted that any sum less than fifty dollars is a reasonable attorney fee by simply denying that that particular sum is reasonable. And, besides, we gather from the findings of the court that the question of the amount of attorney’s fees, which was the only issue, if any, raised by the pleadings upon that subject, was, as we infer, without objection, left wholly to the discretion and decision of the court without calling witnesses. Under these circumstances, and in view of the fact that the amount fixed by the court is a very moderate one, we do not feel disposed to disturb the judgment on the ground of error in that particular.
But we are of the opinion that the decree in so far as it establishes a lien in favor of the respondent Temen must
The judgment of the lower court is affirmed, except as to the lien of Fred Terrien, as to which it must be reversed.
Duxbar, C. J., and Scott, J., concur.
Dissenting Opinion
(dissenting). — My objections to the opinion of the court are confined entirely to the first point. The statute says that those who labor in getting out logs shall have a lien for all such labor performed within the previous eight months. But I take it that the intention is that the lien notice as well as the complaint shall state the facts, and that ivas not done in this case. These notices did not apprise either the owner or the purchaser that any wages were claimed except such as were earned in the production of the particular logs sought to be foreclosed upon, and until the trial it was not known that in the neighborhood of half of the claims were for wages earned by labor upon entirely different logs; and for that reason they ought to have been rejected as not complying with Gen. Stat., §1085.
Hoyt, J., dissents.