160 N.W. 700 | N.D. | 1916
Lead Opinion
This action is brought to foreclose a farm laborer’s lien. Plaintiff, a woman, performed labor as a cook in a cook car in threshing Magill’s grain in September and October, 1915. The trial court dismissed the case, from which judgment plaintiff appeals, demanding a trial de novo. The proof discloses that in the fall of 1915 Magill had about 20,000 bushels of grain to be threshed. He owned his own thresh
The proof fails to disclose that title to the rig ever parted from Magill, or that it was not the joint venture of Kelly and Magill. It is true that he testifies, in response to leading questions from his counsel, that he turned the rig over to Kelly and sold it to him and placed him in possession of it, and took it back eventually, but the circumstances are such as to require stronger proof than this of his parting with title. There was no written agreement, and it is indefinite as to whether title was to pass with the delivery of the possession or not until after all of Magill’s threshing was done and his advances repaid, or when “the job was completed,” as Magill first states was the fact, and which is more probable. Several’ rigs and teams were furnished by Magill, and he was to receive wages for them and was to receive this back after the threshing was done and Kelly had earned enough elsewhere to repay him, but it is admitted that the machine was not to leave Magill’s farm until his threshing was done. It is also a circumstance that, as Magill states, no settlement was had when Kelly threw up the rig and he took it back. Everything was then left as indefinite as was the contract under which it was turned over, if at all, to Kelly in the first instance. To require less than certainty in the terms of the contract as to when the title passes, under such circumstances, would leave a situation such as to permit a party in Magill’s position, by making an indefinite deal, to shirk responsibility for wages and expenses of his threshing upon any ne’er-do-well that he might see fit to ostensibly turn his rig over to. A lawsuit is the usual outcome of such a condition of affairs. Gn the other hand, from plaintiff’s viewpoint, the judgment rendered was wholly inequitable and unjust, and amounts to little short of fraud upon her. Magill had knowledge that she was cooking for the crew, and that
But it is claimed that under the authority of Lowe v. Abrahamson, 18 N. D. 182, 19 L.R.A(N.S.) 1039, 119 N. W. 241, 20 Ann. Cas. 355, the plaintiff has not performed work for which she can claim a farm laborer’s' lien. This contention is fallacious. What was said in Lowe v. Abrahamson evidently lead the learned trial judge to adopt defendant’s theory in dismissing this case. But that case went far from holding that a farm laborer’s lien could not be claimed simply because the work was performed by a woman. There is no sufficient reason why, where a woman performs labor for which a man might claim a farm laborer’s lien, a woman should not also have the right to claim a farm laborer’s lien therefor. Had Magill employed a man to do the cooking on this rig, it could hardly be asserted that in law he would not have been entitled to a farm laborer’s lien as security for his services rendered in procuring the threshing of the crop, under the holding in Heddan v. Walden Farmers Elevator Co. 31 N. D. 392, 153 N. W. 1015, to the same extent as the farm laborer who assisted in cutting the crop. Lowe v. Abrahamson merely holds that a woman doing ordinary housework on a farm is not a farm laborer within the meaning of the statute granting a lien for the wages of farm laborers. Certainly, the case should not be applied to facts such as are before us, because to do so would be the equivalent of denying a lien to a woman while under the same facts it would be granted to a man for the same work. The right to a lien does not, and should not, depend upon the sex of the individual who performed the work. If any person working upon this threshing rig was entitled to a lien, this plaintiff was. Her work contributed directlv, not x'emotely, to the garnering of the crop raised upon this land, in feed
This holding but follows Lowe v. Abrahamson, supra. That decision carefully sets forth testimony to establish “the character of the work performed,” quoting the opinion. It carefully distinguished that holding on facts from Winslow v. Urquhart, 39 Wis. 260, and Breault v. Archambault, 64 Minn. 420, 58 Am. St. Rep. 547, 67 N. W. 348, cited therein, wherein cooks for logging camps were held entitled' to a lumberman’s lien upon logs for services performed as lumbermen. In Lowe v. Abraliamson it is said: “In these cases [the logging crew cases] the cooks went into the logging camps as members of logging crews and did no other work except to cook for them. In this case.the plaintiff did other work besides cooking, and cooked for others than the farm laborers.” 18 N. D. p. 185. This plaintiff was, as in the logging cases, a member of the crew, doing no work but cooking for the crew. Engaged in farm labor only at threshing. Under the interpretation of Lowe v. Abrahamson, given in that opinion, that court would have held plaintiff entitled to a lien. If a cook at a lumber camp is entitled to a lien as a lumberman, a-cook at a farm laborer’s camp or cook car is likewise entitled to a farm laborer’s lien as a farm laborer. See also Young v. French, 35 Wis. 111, holding, as interpreted in 39 Wis. 268: “One who cooks for the men at work on the logs directly is entitled to a lien thereon for his wages under the statute. ... It seems to us that the person who cooks the food for the men who fall the trees and work directly and immediately upon the logs or timber perforins service in the cutting, falling, driving, etc., such logs or timber within the meaning of the statute equally with those who use the ax, the saw, or the team to the same end. . . . The statute under consideration was enacted in the interests of labor, and a sound public policy requires that it be liberally construed. The construction contended for on behalf of the plaintiffs is too narrow, and, if adopted, would go far to defeat the objects and purposes of the statute.” Winslow v. Urquhart, 39 Wis. 260-268. Our statute is also remedial and to protect the laborer, male or female, coming within its letter and spirit. In 64 Minn. 420, it is said: “It is evident that a cook or a blacksmith is as essential
' But, to avoid any misunderstanding of or misapplication of this holding as precedent, it may be stated that a cook on a cook car for the ordinary thresher has no farm laborer’s lien upon the grain threshed for others by said thresher, as the cook would not be considered as a farm laborer, but a laborer for the. thresher, who as thresher is not a farm laborer under this statute, but one who instead has a thresher’s lien for his protection. Nor would an ordinary housemaid or hired girl who, with her other duties, cooks for a threshing crew working for her employer, be a farm laborer within the lien statute. Lowe v. Abrahamson, 18 N. D. 182, 19 L.R.A. (N.S.) 1039, 119 N. W. 241, 20 Ann. Cas. 355. But a farmer owning and operating his own threshing machine may, in doing his own threshing, employ farm laborers who may, for said threshing, claim farm laborers’ liens upon the grain threshed while working for the farmer as farm hands at threshing his own grain. Heddan v. Walden Farmers Elevator Co. 31 N. D. 392, 153 N. W. 1015. And the person employed solely to cook for said laborers so engaged in threshing should be considered as a farm laborer ,and as contributing directly to, and performing, the labor of garnering the grain. The cook is as much a farm laborer as the spike pitcher on the threshing rig, threshing it. In Heddan v. Walden Farmers Elevator Co. supra, it is stated: “The flax could neither be harvested nor threshed except by the use of machinery, and certainly the mere fact that part of plaintiff’s work consisted in aiding in the operation of machinery owned and operated by the,employer did not deprive plaintiff of the
In some of the cases, as, for instance, McCormick v. Los Angeles City Water Co. 40 Cal. 185, it is argued that if a cook is entitled to a lien, those furnishing provisions to eat would be entitled to one .also under similar reasoning. But this overlooks the fact that under the terms of this statute the lien is given for farm labor performed, and not for provender furnished. Likewise, a surgeon performing services for a farm laborer is doing the work of a surgeon, not that of a farm laborer. No need of confusing the question before us by such conclusions as drawn in 40 Cal. 185.
The judgment appealed from should be reversed and a judgment entered in favor of plaintiff and against defendant for the sum of $106.-50 and interest from and after October 6, 1915, together with judgment for foreclosure of the laborer’s lien upon the crop threshed, together with the costs in District Court and on this appeal.
Judgment is ordered entered accordingly.
Dissenting Opinion
(dissenting). I am inclined to think that if the plaintiff had been employed by the defendant Magill to perform the work in question, she would have come under the statutory definition of a farm laborer. I do not believe, however, that the record warrants us in holding that she was working for him. The complaint states that “plaintiff rendered services to the defendants at the special instance and request of the defendant A. J. Kelly,” and “that the defendant A. J. Kelly operated a threshing machine on the above-described premises.” She claimed her lien in the complaint also “for the money so due her under her said contract upon the grains threshed by the defendant A. J. Kelly, upon lands hereinbefore described.” . The evidence appears to me to .support the complaint and to show an employment by Kelly and work ■done for him rather than for Magill. As I view the case, it is immaterial when the title in the machine passed or whether it passed at all. If it passed prior to the entering upon the work, the plaintiff was none the less employed by Kelly rather than by Magill, and Kelly had merely
Dissenting Opinion
(dissenting). I am unable to concur in the opinion prepared by my brother Goss.
The material portions of plaintiff’s cause of action, as stated in her complaint, are as follows: “That from the 1st day of September, 1915, to the 6th day of October, 1915, both inclusive, this plaintiff rendered services to the defendants, at the special instance and request of the defendant A. J. Kelly, in the capacity of a farm laborer, . . . that said lands above-mentioned are owned by the defendant Roland Magill, and that said Roland Magill sowed, grew, harvested, and threshed on the above-described lands, during the season of 1915, wheat and oats,, the amount of which is unknown to this plaintiff; . . . that the defendant A. J. Kelly operated a threshing machine on the above described premises and threshed grain; namely, wheat and oats grown and harvested thereon. That on the 23d day of October, 1915, this plaintiff, for the purpose of securing and perfecting a lien for the money so due her as aforesaid under her said contract, upon the grains threshed by the defendant A. J. Kelly upon the lands hereinbefore described, . . . filed in the office of the register of deeds ... a farm laborer’s lien.” The evidence shows that the services performed by plaintiff consisted solely of cooking meals for the threshing crew engaged by Kelly and operating his machine.
Under the laws of this state (Comp. Laws 1913, § 6851) “any person who performs services for another in the capacity o.f farm laborer between the first day of April and the first day of December in any year,”' may, by filing an affidavit and notice, obtain “a lien on all crops of every kind grown, raised or harvested' by the person for whom the services were performed during said time as security for the payment of any wages due or owing to such persons for services so performed.”
“The statute” (providing for the farm laborer’s lien), said Morgan, Ch. J. (Lowe v. Abrahamson, 18 N. D. 182, 19 L.R.A.(N.S.) 1039, 119 N. W. 241, 20 Ann. Cas. 355), “was passed to secure farm laborers against irresponsible landlords, and against the liens of implement dealers, which often covered the ivhole crop. We must look to the terms
If a person whose principal labor consists of preparing meals for the men laboring upon a farm is not a farm laborer, then, certainly, a cook for a threshing crew is not. It seems to me that the term “farm laborer” merely means what is commonly understood thereby, and as. so understood it means a person engaged in performing farm woi'k proper. The term does not include a person who performs services for a farm laborer, and thereby indirectly aids in the production of the crop. When we speak of a farm laborer, would anyone believe that we referred to a person whose sole labor consisted of cooking for a threshing crew engaged in general threshing? I think not.
It seems to me that the conclusion arrived at by the majority is contrary to, and in effect overrules, Lowe v. Abrahamson, supra, and I am opposed to overruling decisions announcing rules of statutory construction, as it tends towards chaos and uncertainty. If the statute as. construed by the court is unsatisfactory, the legislature can very easily change it. If the legislature fails to act, the people may by initiative petition propose any desired change.
Under our laws the owner or lessee -of a threshing machine who threshes grain for another becomes entitled to a lien on the grain threshed for the amount of the thresh bill. This lien has priority over all other liens or encumbrances. Comp. Laws 1913, §§ 6854-6856. The lien to which the thresher is entitled necessarily includes the services of the various persons who work for him in and about the operation of the threshing machine, and certainly a person engaged by the owner or lessee of a threshing machine does not become entitled to a farm laborer’s lien upon the grains threshed by such threshing machine. The law contemplates that a farm laborer (and the term “farm laborer” merely means what is commonly understood thereby), upon complying with the statutory provisions, becomes entitled to a lien for his services. Persons engaged by the owner or operator of a threshing machine must look to their employer for payment, and he has a right to obtain a threshing lien for the sums due him for threshing, but the persons in his employment must look to him alone for their pay, and have no right to claim a lien against the grain threshed. They are not farm laborers within the purview of the statute; nor are they employed by the owner of the crop to perform such service. It is true that in Heddan v. Walden Farmers Elevator Co. 31 N. D. 392, 153 N. W. 1015 (wherein the opinion was written by the writer), we held that where the farmer owns and operates his own threshing machine, and where the men engaged by him perform work under his direction in the threshing and marketing of the grain, they are farm laborers within the meaning of the statute and entitled to its protection. In the Heddan Case the employer owned and operated a small threshing machine of his own, with which he threshed his own grain. His farm hands performed work on the machine. The evidence showed that Heddan not only performed labor in threshing, but that prior thereto he performed labor in harvesting the grain involved in that case. The work which Heddan performed was not for a thresher engaged in general threshing, but it was labor performed under an agreement with the farmer who produced the crop, and under his direction. But in a case where a person is employed