86 S.E. 593 | N.C. | 1915
Civil action tried before Connor, J., a jury trial having been waived, and a case stated for the opinion and judgment of the court, which is as follows:
1. The plaintiff, Alonzo Thomas, was at the time of the institution of this action, and prior thereto, the owner in fee and in possession of a tract of land situated in Carteret County, upon which was standing, growing and lying certain timber trees.
2. That prior to the institution of this action the plaintiff, Alonzo Thomas, entered into a contract with the Newport Lumber and Manufacturing Company, by which plaintiff sold to said company, at $4.50 per thousand feet (to be paid when said trees had been cut into logs and measured, and before said logs had been removed from the land), such of said trees, in specified dimensions, as the Newport Lumber and Manufacturing Company should cut or cause to be cut into logs.
3. That after the making of the contract aforesaid between (624) plaintiff and the Newport Lumber and Manufacturing Company, the latter company contracted with the defendant Merrill for the cutting, hauling and rafting of the logs after said trees had been felled, and *708 under said contract defendant Merrill was to receive from said Newport Lumber and Manufacturing Company the amount of $4.50 per thousand feet.
4. Thereafter, and pursuant to the contract, defendant Merrill did cut, haul and raft certain logs, which are the subject-matter of this action. That the Newport Lumber and Manufacturing Company failed to pay the plaintiff Thomas the sum of $4.50 per thousand feet for the logs, or any part of same, and failed to pay to defendant Merrill the amount due him by said Newport Lumber and Manufacturing Company for the cutting, hauling and rafting of the logs. Then the plaintiff instituted this action to recover possession of the logs and sued out a writ of claim and delivery for the same against this defendant, the Newport Lumber and Manufacturing Company having theretofore notified the plaintiff Thomas that it would not pay for the said timber logs and that it had abandoned its rights under the contract. That under said writ of claim and delivery the sheriff of Carteret County took from the possession of the defendant Merrill, and delivered into the possession of the plaintiff Thomas, 470 logs, containing approximately 34,000 feet log measure, which, when so taken into the custody of the sheriff, were worth the sum of $370.
5. That the amount due the defendant Merrill by the Newport Lumber and Manufacturing Company upon his contract for cutting, hauling and rafting the logs is $156.81, and that this sum the Newport Lumber and Manufacturing Company has failed to pay.
6. When logs were taken from defendant, they were in rafts in Ware Creek.
Upon the foregoing facts the court is of opinion, and so finds:
1. That the plaintiff Thomas is the owner and entitled to the possession of the timber logs until he has been paid from the proceeds of the sale of the same the amount of $4.50 per thousand feet, pursuant to the contract between him and the Newport Lumber and Manufacturing Company, with interest from 9 September, 1913, together with the costs of this action, as taxed by the clerk of this court, towit, $17.90.
2. After that sum has been paid to the plaintiff Thomas, the defendant Merrill is entitled to be paid from the proceeds of the sale of the logs, under his contract with the Newport Lumber and Manufacturing Company, the sum of $156.81, with interest from the date of the seizure by the sheriff.
3. If any balance is left, after the payment of the amount set forth in the first two conclusions above, the plaintiff Thomas is en (625) titled to retain the same, since the Newport Lumber and Manufacturing Company, prior to this action, abandoned any claim to the timber logs under the contract with the plaintiff. It further *709 appearing to the court that the logs cannot now be found for sale, the plaintiff Thomas is liable to account with defendant to the value of the said logs at time of seizure, towit, $370.
It is therefore adjudged that defendant recover of plaintiff the sum of $156.81, with interest from 9 September, 1913, and that Thomas retain the balance as the owner of the same.
After stating the case: We are unable to see why the conclusion of JudgeConnor, upon the facts stated, was not correct. The plaintiff was entitled to be paid by the Newport Lumber and Manufacturing Company the price of the timber, and conceding, for the sake of the discussion, that it could seize the logs for the purpose of securing the payment of this debt, it was, nevertheless, under an obligation to hold the logs for the defendant Merrill's benefit as well as its own, if he had a lien on them for work and labor performed by him for the Newport Lumber and Manufacturing Company in the cutting, hauling and rafting of the logs. This must be so, as it appears that the logs, when taken under the writ sued out at the instance of the plaintiff, were worth enough to pay both claims. The fact that plaintiff lost the possession of the logs and cannot recover the same for the purpose of selling and converting them into money to pay the debts cannot be allowed to prejudice the defendant Merrill, as it was not his fault that they have been lost, or cannot now be found, but was solely and entirely the fault of the plaintiff. Nor can the fact that the Newport Lumber and Manufacturing Company has abandoned its rights under the contract with plaintiff have any prejudicial effect upon the claim of defendant Merrill against it. The company, even with the approval of the plaintiff, cannot deprive him of any right he may have, with respect to the logs, without his binding consent.GEORGE W. CONNOR, Judge Presiding.
The next question is, whether Merrill has any lien on the logs under his contract with the company. We have assumed that his lien, if he has any, is subordinate to that of the plaintiff for the purchase money of the timber, as defendant Merrill has not appealed, and must be understood as not disputing this proposition. Nor need we pass upon it, for another reason, namely, that the value of the logs which have passed into the hands of the plaintiff, or of which, in law, he received the benefit, is more than sufficient to cover the amount (626) of both claims. The case, therefore, is practically confined to *710 the question of defendant's lien. Under the contract between the company and the plaintiff, the title to the timber passed to the former, subject to plaintiff's lien for the purchase money, if he had one. The contract contemplated that the timber should be cut and made into logs, which were to be "rafted and hauled" to Ware Creek, where the plaintiff caused them to be seized, under legal process, while they were in the possession of defendant.
It is not necessary for us to decide whether Merrill had a common-law lien on these logs. That feature of the question is treated to some extent in 25 Cyc., 1580, 1581, and notes. Jones, in his work on Liens (2 Ed.), sec. 702, says that, at common law, laborers engaged in cutting, hauling and driving timber had no lien thereon, and, therefore, can assert none, except by statute or special contract, as it is indispensable to the continuance of such a lien at the common law that the party claiming it should have the possession of the article of property upon which it rests, and a laborer generally works under a contractor, and consequently cannot retain the possession, because he holds possession of the thing for the contractor, and, in law, his possession is not his own, but that of the contractor, as against the owner, implying that if he contracts directly with the owner, in his own behalf, and cut the timber into logs, he will have a lien thereon; and in the next section (703) he says: "One who has cut and hauled to his mill a quantity of timber from the land of another, under a contract with him, has a lien at common law for his labor upon the lumber in his possession remaining manufactured from the timber, and also upon the logs unsawed. In like manner one who saws the logs of another into lumber and shingles has a common-law lien thereon for the value of such work," citing Palmer v. Tucker,
By Public Laws of 1913, ch. 150, sec. 6 (Gregory's Supplement, sec. 2023-a), it is enacted that "Every person doing the work of cutting and sawing logs into lumber, getting out wood pulp, acid wood, or tan-bark, shall have a lien upon the lumber for the amount of wages due them, and such liens shall have priority over all other claims or liens upon said lumber except as against a purchaser for full value and (627) without notice thereof." Provision then follows for making the *711
lien effective and giving notice, if the owner be found, by posting it on the pile of wood, lumber or other articles, and when this is done, subsequent purchasers of it take subject to the rights of the lienor. InGlazener v. Lumber Co.,
This case comes well within the meaning and remedy of our statute, Revisal, sec. 2017, as to liens of a mechanic or artisan on any article of personal property, for any just or reasonable sum due to him by the owner thereof, where he has made, altered or repaired it at the request of the owner or legal possessor thereof. It will be observed that Merrill's contract was to cut, haul and raft the logs after the trees had been felled or severed from the freehold and became personal property. Ives v.Railroad,
This brings the case within the terms and intent of Revisal, sec. 2017 (Huntsman v. Lumber Co.,
It is not altogether certain whether, under this contract, when fairly construed, any lien was given to the plaintiff, or whether the obligation to pay $4.50 per thousand feet was a personal one merely; but we will not pass upon this question, as it is not necessary to our decision of the case, and it is of too serious a character to be considered and foreclosed without due deliberation, nor until we are called upon to do so by the exigency of the case.
There was no error in the judgment of the court upon the case stated.
Affirmed.
Cited: Graves v. Dockery,