58 W. Va. 381 | W. Va. | 1905
W. W. Rainey filed his -bill in equity in the circuit court of Barbour county against the Freeport Smokeless Coal & Coking Company, a corporation, to enforce a lien under section I of chapter 15 of the Code, against the property of said corporation. The account filed charges the said corporation with salary as its general manager for fifteen months, from August 1, 1900, to November 1, 1901, at $75 per month, aggregating $1,125. Certain credits are allowed, bringing the aggregate down to $955.50. Of this latter sum only $675 is claimed to be a lien for services rendered within nine months preceding the recordation of the account. The bill also sets up a laborer’s lien on the same property, in favor of George Shanabarger, for a balance of $160.72, and makes him a defendant thereto. The cause was referred to a commissioner to ascertain' liens, set-offs, etc. Upon the hearing of the cause upon the commissioner’s report, a decree was entered declaring liens in favor of plaintiff, and defendant Shanabarger, as alleged in the bill, and giving a recovery therefor and for the balance of the plaintiff’s claim which was not a lien, and directing sale of the real and personal property of said corporation to satisfy the liens and debt. From this decree the said corporation appealed.
The appellant complains of the decree and of the report of the commissioner, and of the overruling of its exceptions thereto, for a number of reasons, among which is that the commissioner erred in finding, and that the court erred in
Plaintiff claimed an express contract for wages as general manager, at the rate of $75 per month. In one part of his testimony he says that the express contract was made with W. A. Wade as agent of the appellant; but Wade in his tes-timonv denies this, and it is shown conclusively that Wade had no authority to make such contract. In another part of plaintiff’s testimony, he says the express contract was made with W. A. Wade, George B. Wade and Frank H. Sloan; but this is also denied, together with the authority of those
What we have said does not dispose of the claim of defendant Slianabarger to a lien for work and labor. His account filed runs from June to November, 1901, including a small item in November. While it is true that plaintiff, being a stockholder and director of appellant, acted as its general manager without compensation, yet it is conceded by all the testimony that he had power and authority to employ labor for the corporation. He testified that he employed Shanabarger for the corporation as pit boss and' for other labor, at the prices charged in his account, and made the
Appellant objects to Shanabarger’s claim for a lien because his account is not sufficiently specific. The account shows that it is in favor of Shanabarger and against appellant. It is composed of various items, specific in amount, and when taken with the affidavit we think that it reasonably appears ■that the necessary requirements of the statute have been complied with. Substantial compliance with the provisions of the statute is all that is required in the account and affidavit, .and the account and affidavit are to be considered together. We think no one could be misled as to the nature, purpose or amount of the account, although it could have been much more formal and full in its recitals. It would seem to us that it is sufficient to give notice, which is one of the principal purposes of requiring the account and affidavit to be recorded. U. S. Blow Pipe Co. v. Spencer, 40 W. Va. 698; Phil. Mech. Liens, section 350; Wolvert v. Sunberry, 81 Pa. 27.
Appellant complains of the overruling of its exceptions to the commissioner’s report. The first and second exceptions of appellant thereto are to the effect that the commissioner failed to report whether or not there were any credits or set-offs against said alleged liens, and failed to report whether or not there were any liens other than those to plaintiff and Shanabarger, as directed by the decree of .reference. The commissioner reported the liens of plaintiff and Shanabarger, but reported no other liens and reported no credits or set-offs •other than those stated in their respective accounts. Therefore, we must presume that the commissioner found neither ■other liens nor other set-offs, or he would, have reported them. The third and fourth exceptions of appellant to the -commissioner’s report are disposed of by what we have al
The decree of reference to a commissioner contains the following expressed opinion of the court: “The Court is of opinion that the plaintiff and defendant Shanabarger have mechanics’ liens against the real estate owned by the defendant corporation, the Freeport Smokeless Coal & Coking Company, as alleged in the plaintiff’s bill.” The decree of reference to a commissioner is founded upon this expressed opinion, but the decree does not otherwise adjudicate the principles of the cause. It is claimed by plaintiff that the part of the decree quoted ivas a final adjudication of the rights of the plaintiff and Shanabarger, and that it should have been followed by a decree of sale, and not by a decree of reference. This part of the decree was not a final adjudication of the rights of plaintiff and Shanabarger, but a mere recital, after a prima, facia case had made proper a decree of reference. This part of the decree was merely interlocutory, and not appealable. Cases in point are Cronin v. Hill, 56 W. Va. 174; Armstrong v. Ross, 56 W. Va. 16.
The decree complained of directed the sale of the personal and real property of the appellant mentioned in the bill, without ascertaining its value or the kind or items of personal property. The statute provides that after a lien is established in favor of any of the creditors whose claims are presented the court shall order a sale of the property on which the lien is established, or so much thereof as may be sufficient to satisfy such claims, in like manner as in other suits in chancery. In this case it is necessary to reverse the decree so far as the plaintiff’s claim is concerned, which is by far greater in amount than the lien of Shanabarger, thus leaving the amount for which appellant’s property is liable comparatively small. It would seem inequitable to permit the decree for sale of all the property to stand when it does not appear that a sale of all is necessary to satisfy the Shanabarger lien, especially when there has been no ascertainment of the kind and amount of the personal property or of the value of either the real or personal property. The personal property alone may be more than sufficient; we cannot say.
For the reasons stated, so much of the decree of the circuit
Affirmed- in pa/rt.