| S.C. | Nov 29, 1904
November 29, 1904. The opinion of the Court was delivered by This action arises out of a contract between the parties to this suit for the sawing of a large quantity of lumber for the plaintiff, and an attempt on the part of the defendants to sell said lumber under an alleged *273 sawyer's lien, to pay for the sawing. The plaintiff also alleges a balance due by the defendant, Cassels, on a note as an offset to the sum due for the sawing. The complaint also prayed for an injunction, which was granted. The defendant, Cassels, appealed from the judgment of the Circuit Court.
The first question presented by the exceptions is whether his Honor, the Circuit Judge, erred in his finding as to the price agreed upon for the sawing the lumber. The finding of the special referee was sustained by the Circuit Judge, and it has not been made to appear to us that the preponderance of the testimony is against such finding.
The next question for consideration is whether the Circuit Court erred in its ruling, that the defendants did not have a lien on the lumber for sawing at the time of the attempted seizure thereof. The report of the special referee as to this issue was sustained by the Circuit Court. The reasons assigned by the special referee for concluding that there was not a lien at the time mentioned are satisfactory to this Court.
The next assignment of error is on the ground that the Circuit Judge held that the plaintiff was entitled to damages to the amount of fifty dollars by reason of the unlawful seizure of the lumber by the defendant, Cassels. The special referee found that the plaintiff was only entitled to damages amounting to five dollars. The Circuit Judge erred in overruling the report of the special referee upon this issue. The reasons assigned by the special referee are satisfactory to this Court. It was the fact that the lumber had been delivered to the plaintiff, that destroyed the defendant's lien for the sawing. The injury to the lumber took place after the delivery; therefore the defendants were not responsible therefor. Dozier v. Johnston, 2 Hill, 297. *274
The next question is whether there was error in holding that the note executed by Cassels was not barred by the statute of limitations. The payment on the note was made by the direction of Cassels, and this necessarily prevented the bar of the statute.
The last question is whether the judgment was entered in conformity with the decree. The Circuit Court has not ruled upon this question and it cannot be made in the first instance in this Court.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, except in the particular hereinbefore mentioned, and that it be modified in that respect.