59 Mich. 199 | Mich. | 1886
On the third day of March, 1884, plaintiff entered into a written contract with defendants to break, run, drive and deliver in the Au Gres Boom Company’s limits, a certain lot of pine saw-logs, cedar posts, and telegraph poles, situated on the bank of the west branch of the Au Gres river, the work to begin as soon as the stage of water in the spring of 1884 will permit of its being done, and to be finished as soon as possible. Plaintiff agreed to take a clean rear, and use every endeavor to get the drive down in good season. The defendants agreed to pay twenty-five cents for each thousand feet for the saw-logs, five cents for each coi’d of cedar posts, and three and one-half cents apiece for the telegraph poles; these sums to be paid upon the bank-scale, and to be due when the logs are all below the forks of the river, and inside the boom company’s limits; the work to be subject to supervision by said defendants, or their agent. On the seventh of June, 1884, the plaintiff filed a claim of lien for running the logs mentioned in the
When the case came on for trial, the plaintiff offered in-evidence a statement of lien under the act above mentioned,, to the introduction of which, and of all proceedings which.
Under this statement of the record, the defendants claim :
First, that act No. 145, Sess. Laws 1881, is unconstitutional, and that defendants waived no right by appearing and pleading to the declaration.
Second, that an independent contractor is not entitled to a lien, under the provisions of this act, under any circumstances, and that, therefore, he cannot recover a personal judgment in a proceeding instituted under the said statute, although the jury may find that he has no lien.
Tim'd, that the plaintiff cannot recover for a balance due on a written contract, under the form of the declaration in this cause, and the court erred in admitting any evidence thereunder.
In support of the first point, it is urged that the law is .unconstitutional, because it undertakes to provide for a process whereby a person’s property may be seized and sold without the service of process, either actual or constructive, judicial, executive or administrative, and where there are no contract relations, express or implied, between the owner of the logs and the party who obtains the judgment.
I do not think the objection raised as to the unconstitutionality of the act, is open to the defendants in this case. The
The second and third objections raised by defendants may be considered together. It is first claimed that an independent contractor is not entitled to a lien, under the provisions of this act, under any circumstances. But what is meant by an “independent contractor?” As applied to the facts as disclosed by this record, I suppose it must refer to a party who enters into a contract with the owner of the property to drive and deliver the logs, cedar posts and telegraph-poles for an agreed compensation. Such a contractor, in my opinion, is within the very terms of the law giving a lien to any person who may perform any labor or services in banking, driving, or running any logs, timber, cedar posts, or telegraph poles in the State, for the amount due for such labor or services. There must be a contract, express or implied, to support a lien; and it never arises, unless by express provision of the statute, where no contract relations exist. The language of the statute, “ that any person or persons that perform any labor or services in cutting,” etc., under the common application of the maxim, “ qui per alium facit, per seipsum facere mdeixvr” is legally applicable to the general contractor having servants or sublaborers under him. This
“The general owner, in many cases, undoubtedly contemplates that the work will not be performed by the individual services of the party alone with whom he contracts, and by necessary implication, gives the contracting party authority to employ subcontractors and agents, as the necessities of the occasion may demand: ” Jacobs v. Knapp, 50 N. H. 71.
Such was the case here. The facts and circumstances relating to and surrounding the transaction show conclusively that the parties did not intend, by the contract entered into, that the plaintiff should personally perforin the services. That would have been impossible: Hall v. Tittabawassee Boom Co., 51 Mich. 402. It was therefore contemplated that he would employ a sufficient force of laborers to perform the work. One of the objections urged by defendants in the notice given under the plea of the general issue was that plaintiff neglected and failed to put on a sufficient force of men and tools, etc., to get the drive down in good season. Whether the statute, in declaring that “the words ‘person’ or ‘persons’ in the first section shall be interpreted to include cooks, blacksmiths, artisans, and all others usually employed in performing such labor and services,” would operate to give a lien to cooks, blacksmiths, etc., between whom and the owner there exist no contract relations, is not necessary now to determine. The mention of these certainly does not exclude persons performing labor and services under a con
It is true that the court below ruled that no evidence could be received of the steps taken under the act to enforce the plaintiff’s claim as a lien, because of the written contract between the parties to the suit; but in this the court erred, and the plaintiff then proceeded to obtain a personal judgment for the amount of his claim. If the statute permits this to be done where no lien in fact exists under its provisions, there is no reason why it may not be done in this case if the declaration is sufficient to allow it. The plaintiff gave evidence tending to show that he had fully performed the contract on his part; and where a contract has been fully performed a party may, in general, recover under the common counts. Such right to recover is based upon the undertaking which the law imputes to the defendant as a consequence of the full execution of the special agreement by the plaintiff, and is co-extensive with the past consideration involved in his performance of the special agreement: Begole v. McKenzie, 26 Mich. 472. There are well-recognized exceptions to the rule, such as contracts for the payment of stipulated damages, and other cases where the cause of action is made to depend upon the writing which the parties have executed. The declaration in this case does not contain the common counts, but the special count under the statute does contain substantially the averments which are essential to a common count. It avers the performance of services and labor in breaking roll-ways, and running and driving defendants’ logs, and that there is due to plaintiff $314.73 therefor, and that, in consideration of the premises, the said defendants undertook and promised the plaintiff to pay him the said sums of money on request, and that they had neglected and refused so to do. The declaration is sufficient to permit a recovery, based upon the undertaking which the law imputes to the defendants, upon equitable principles, to pay for such labor and services after the contract has been fully performed by the plaintiff. Were it otherwise the declaration might be
But the more serious question arises whether where it is expressly found that no lien exists, a party is entitled to a personal judgment against the defendant as in ordinary civil actions for the indebtedness found to be due from defendants to the plaintiff. The statute which first authorized a lien for labor or services upon logs and timber was enacted in 1873 : Pub. Acts 1873, p. 466. This act was very general and incomplete. It authorized proceedings by attachment, to enforce the lien against the logs and timber, and the process and proceedings were to be controlled by the general law relating to attachments, and it enacted that “ all suits and proceedings in these premises, in the circuit court, shall be commenced and prosecuted as any other civil suit, with the power and provision of proceedings by attachment against the property upon which lien is claimed or founded, as is provided in proceedings by attachment” under the general statute. This statute came before this Court for consideration in the case of Clark v. Adams, 33 Mich. 159, and it was there held that the right and remedy are bound up together, and must be construed togetherthat “ a suit under this law must be carried out under it, and it is one in rem to enforce a lien, and not for the recovery of personal damages. Under no circumstances can the party prosecuting the proceeding go on, and use it as a suit commenced by summons for the recovery of damages, as may be done in particular cases under the general attachment lawthat “a personal judgment is not authorized.” Again in Haifley v. Haynes, 37 Mich. 535, it was held that the lien for cutting logs under the act of 1873 could not be enforced as against those who have purchased from the debtor without notice of the claimant’s lien, as shown by his petition on file, or by his actual possession. This act was-amended in 1879 and again in 1881, by making the proceedings more specific, and extending the remedy to authorize judgments m personam where it should be found that no lien in fact existed: Bub. Acts 1881, No. 145. This act
“ In all suits or attachments prosecuted under the provision of this act, the court, jury, or justice of the peace who shall try the same, or make an assessment of damages therein, shall, in addition to finding the sum due the plaintiff, also find that the same is due for labor and services performed upon the logs, timber, posts, ties, poles, bark, bolts, or staves described in the declaration, and is a lien upon the same; and the court or justice of the peace, as the case may be, shall render judgment in accordance with such finding, and execution shall issue therefor, and such execution, in addition to the commands in ordinary executions, shall command that the said logs, timber, posts, ties, poles, bark, bolts, or staves, or so much thereof as shall be necessary for that purpose, shall be sold to satisfy such judgment, and all costs, charges, and disbursements: Provided, however, that if the court, jury, or justice of the peace shall find that the amount due the plaintiff is not a lien upon the property described in the declaration, the plaintiff shall not be nonsuited thereby, but shall be entitled to judgment as in other civil actions ; but in such case said plaintiff shall not recover or tax any costs arising from the filing’ of the statement of lien, nor for officer’s fees or expenses incurred relative to the property seized.”
Section 13 provides that the proceedings for the enforce
It will be seen from the foregoing that the statute expressly authorizes a judgment in personam, as well where a lien is found to exist as where the amount found due is not a lien upon the property. The statute is remedial, and was enacted to provide additional security to the laborer, and should be liberally construed to effectuate that object. In the present case, if no lien did in fact exist, there is no legal obstacle in pursuing the remedy commenced to enforce a lien to-obtain a personal judgment against the defendants for the amount found to be due plaintiff for running the logs, cedar posts and telegraph poles.
The testimony of the defendants to prove that Mr. Scott had logs in the river above the drive of plaintiff, and that plaintiff did not put on sufficient force of men to keep the river unobstructed for Scott to drive his logs, and that he put men upon plaintiff’s drive to get them out of the way of his logs, .and claimed pay for his services from defendants’ men, was rightly excluded. The claim had not been established; nor the amount liquidated or paid. It could not be introduced under the plea of the general issue, and no notice had been given of such defense.
There was some evidence tending to show that this stream was not navigable in its natural state at the time Scott’s men worked upon the logs driven by plaintiff, and that Scott had control of the dams upon the river. We have held that there is no lien for removing obstructions upon a stream which requires the aid of artificial means in running the logs by means of dams, etc.: Kroll v. Wester, 52 Mich. 70.
The judgment is affirmed.
Act No. 66, Session Laws of 1887, approved April 13, 1887, and which took immediate effect, amends sec. 3035, by making it applicable to any “lake, liver, creek or stream of this State,” which is navigable in its natural condition, or is made so “by dams or other artificial means.”