| Wis. | Jan 15, 1876
1. The learned counsel for the defendant contend that a justice of the peace has no jurisdiction of the action. We agree with counsel that unless the action arises or grows out of contract, express or implied, the position is well taken. R. S., ch. 120, sec. 5. But we are of the opinion that a contract relation exists between the parties in respect to the labor performed by the plaintiff in the construction of the defendant’s railroad. The law places the company in the position of surety that the plaintiff’s employer will pay him for his work, and renders the company absolutely liable to pay therefor, if certain conditions specified in the statute are complied with. The relation of the company to the plaintiff is the same as though the company had executed a written guaranty, in due form, to the same effect. It was so held in Streubel v. The M. & M. R’y Co., 12 Wis., 67" court="Wis." date_filed="1860-06-15" href="https://app.midpage.ai/document/streubel-v-milwaukee--mississippi-railroad-6598180?utm_source=webapp" opinion_id="6598180">12 Wis., 67. What was said on this subject in that case is not obiter dictu/m, as counsel seem to think, but relates to and determines the very point upon which the case turned, and is authority upon the question under consideration. We conclude that the first alleged error is not well assigned.
2. The question presented by the second assignment of error is ruled against the defendant in the case of Mundt v. The Sheboygan & Fond du Lac R. R. Co., 31 Wis., 451" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/mundt-v-sheboygan--fond-du-lac-railroad-6601111?utm_source=webapp" opinion_id="6601111">31 Wis., 451, where it was held that the act of 1857 (ch. 27) made the railway company liable for the work done for a subcontractor, although the act only specifies claims for labor “ against any person being contractor on such railroad with the rcñlroad company" Tay. Stats., 1051, § 57. In the law under which this action was brought, and which was enacted several months
3. The statute requires that the notice of indebtedness therein mentioned shall be given within twenty days after the labor "is performed, and the action commenced within thirty days after such notice has been given. Hence the action must be commenced within fifty days after the work is done. If the laborer cannot maintain an action against the railroad company for his wages until the price of the work becomes due to the contractor under the agreement between the latter and the company, it would be very easy for the company and contractor so to frame their agreement as to deprive the laborer of the security which the legislature evidently intended to give him. Should such agreement give the company ninety days credit after the work is done, for the price of the work, that result would follow. . It is manifest that the legislature never intended any such result, and the law ought not to receive a construction which would deprive it of value. We think the jury were correctly instructed.
By the Gowt. — The judgment of the circuit court is affirmed.