Wright v. Terry, 23 Fla. 160

Wright v. Terry

23 Fla. 160 | Fla. | 1887

Mr. Justice Raney

delivered the opinion of the courts

It is contended by counsel for the appellee, J. W. Terry,that Wright was to pay the men employed by E. B. Terry;, that as to these men E. B. Terry was but the agent of Wright, and their employment by E. B. Terry was in effect employment by Wright; that the consideration for their employment did not proceed from E. B. Terry, but from Wright, and proceeded by his express agreement,, which could have no other character than that of constituting him agent for the purpose; that appellee and his-co-employes were working on the credit of Wright, and by his express contract to that end, Wright being the principal in an employment authorized by himself in a way which assumed responsibility to himself.

Is this so ? Considering the contract we understand its-meaning and effect to be that E. B. Terry undertakes to-drive the logs from a point on Pea or Choctawhatchie river in good driving water and deliver them to Wright’s steamboat at the head of Choctawhatchie bay; that the compensation to be paid by Wright to E. B. Terry for the performance of this undertaking was at the rate of one dollar per thousand feet. This, the first paragraph shows to be the real undertaking to be performed by E. B. Terry, and the amount of the compensation for each thousand feet so-driven and delivered to be paid him by Wright. The second paragraph provides that Wright will, to meet contingencies, supply provisions and money, the latter to be supplied to pay off men that may be got rid of, and the amount of it not to exceed $200. These men we understand to be such as may be got rid of on the trip down the river, or before the end of the drive was reached.

The provisions and money to he supplied under the sec*167ond paragraph were to be supplied by Wright to facilitate or enable Terry to meet the contingencies requiring provisions and those requiring money, as indicated, which might arise in the performance by Terry of his undertaking, and they, both provisions and money, were to be credited on whatever might be payable by Wriglit to Terry under the first clause. The third clause: “ All other men to be paid off by G-. W. Wright, or his agent, at the end of the drive,” was inserted for the benefit of Wright, and its effect was to give him the privilege of paying off the “ men ” it refers to, and such payments were to be charged against Terry, but its effect was not to make Wright the employer or debtor of such men, nor liable in any event for more than N. B. Terry could cl Urn under the first paragraph. The purpose was to secure Wright against any annoyance or damage which might come from the men not being paid by Terry, and it may be that both of them considered that the men might under the statutes have, or attempt to assert, a lien on the logs for their wages, and the convenience it would be to Terry for Wright to have the money at. the end of the drive and pay off the men may also have been within the actual contemplation of the parties. There is nothing, however, in the agreement which indicates tp our minds that the men were to be the employes of'Wright. It is on the contrary plain that “ the drive ” from the starting point on Pea or Choetawhatehie river to the head waters of 'the Choetawhatehie bay was to be the undertaking to be performed by N. B. Terry, and to be controlled by him without any interference by Wright, other than that Wright could “follow up the drive and see that it was a clean up,” and this provision did not render the undertaking of Terry less a bailment for hire, to 'be performed by him upon his own responsibility. There is moreover nothing in the contract which constitu*168ted B. B. Terry the agent of Wright to hire men on Wright’s responsibility as a principal. Such idea is both inconsistent with the undertaking of Terry, and the fact that the amount of the entire consideration payable by Wright is at the rate stated in the first paragraph. The subsequent paragraphs do not change the amount or i-ate of compensation.

The language of the third paragraph is not such as indicates a purpose on the part of Wright to bind or render himself liable to the hands it refers to for what might be due them. If its purpose had been to make him the debtor of these men, not only would it, in view of the former provisions of the paper, have heen more specifically expressed, but the provision as to his agent would not have been inserted. If this clause can, in view' of the rest of the contract, be construed to show a purpose upon the part of Wright and Terry to bind Wright personally as a debtor to the men, then it must also be construed as showing also an intent to bind Wright’s agent individually, which would be altogether unreasonable. Instead of being an undertaking by Wright that he would become the debtor of the men who should continue or be on duty and -unpaid at the end of the drive, we think it to be a provision.intended to enable Wright to protect himself, if he saw fit to avail himself of it, against any annoyance which he might apprehend from Terry’s not paying the men; it was notNan agreement with any one else than B. B. Terry, nor one binding Wright to pay a larger sum of money or consideration than the first paragi’aph indicates. If it be said that it; was a z’egulation of the manzzer of paying izz part the consideration, or performing the undertaking of Wright, stilj it was one within the control of Wright and Tez’ry and capable of being changed by them.

If, before the ezzd of the drive was reached, Wright had *169advanced to N. B. Terry all of the money that, on the completion of the drive, he could claim under the first clause, we think, that neither Terry nor any one could insist on such payment being made, because it was an agreement whereby even N. B. Terry or Wright intended that personal liability to the men should be undertaken by Wright, but was one of convenience to Wright. The fact that the plaintiff was shown this contract at the time he contracted with or was hired by N. B. Terry did not change its legal obligation upon Wright, or in other words, did not make the plaintiff any more the employe or creditor of Wright than if it had not been shown or mentioned. We do not say that Wright could not have so contracted as to have made himself personally liable to the men, but think this is not a contract in which he so undertook. In those cases wherein A. has promised B. for a valuable consideration, moving from B. to pay to C. a debt owed to him by B., and in which it has been held that C. could sue A. to recover the amount which he promised B. to pay, it will be found that the agreement or promise has shown a clear intent and purpose upon the part of both A. and B. that A. should become the debtor of C., and the mere fact that C. might be benefited by the promise to B. has been held not to be sufficient to constitute A. the debtor of C., or to authorize the latter to sue him. C. must be the party intended to be benefited; directly and primarily, say some authorities. Simson vs. Brown, 68 N. Y., 355, 361, 362 ; Merrill vs. Green, 50 N. Y., 270; Turk vs. Ridge, 41 N. Y., 201; Dow vs. Clark, 73 Mass., 198 ; Field vs. Crawford, 72 Mass., 116 ; Mellen vs. Whipple, 67 Mass., 317 ; Fitch vs. Chandler, 58 Mass., 254; Greenwood vs. Sheldon, 31 Minn., 254.

Assuming that N. B. Terry had, by virtue of the contract and his possession of the logs thereunder, a lien on the *170logs by the common law, or, in other words, independently of the statute of 1875, (sec. 39, p. 729, of McClellan’s Digest,) hereafter to be considered, still at the common law the appellee and his co-laborers had no lien thereon. The lien of a bailee does not, as against the bailor, extend to the persons employed under the bailee. Story on Bailments, §440; Hollingsworth vs. Dow, 19 Pick., 228. An exclusive legal possession is an essential element of a common law lien on personal property. McIntyre vs. Carver, 2 W. and S., 392. And apart from the principle stated in the preceding sentence, barring appellee from a lawful assertion of a lien as against Wright, there is moreover nothing in the record to support, even as against Ú. B. Terry, the idea that appellee and his co-employes would at common law have any lien. Their possession was that of H. B. Terry. Though H. B. Terry states once in his testimony that the men were holding the logs until they got their pay, it is plain from the testimony that the only possession the logs were in from the time H. B. Terry took them to commence the drive till Wright’s agent got them was that of U. B. Terry; this is shown even by U. B. Terry’s testimony; there was no agreement between him and the men which gave them possession as against him. A lien cannot be acquired through a possession unlawfully obtained; (2 Kent, 638, 639,) and consequently any attempt on the part of H. B. Terry to give them a lien for their labor through a possession, exclusive of his own, after the drive was completed, would not have prejudiced Wright.

This brings us to a consideration of the above statute of 1875, which is entitled “an act to protect laborers and lumbermen and which provides “ that laborers and contractors, contracting and engaging to cut, raft or sell logs or timber of any kind, or to perform any labor in connection with the sale and delivery of any such logs or timber, shall *171have a first lien on such logs or timber, or any lumber, boards, staves, laths or shingles manufactured therefrom, until the compensation for services shall be fully paid and satisfied to the amount agreed upon by the contracting parties, unless a contrary stipulation be entered into at the time the contract is made or work done, which lien shall be enforced in like manner as the lien provided for builders, mechanics, material men, laborers, &c.” Assuming that to- “ drive” and to “ raft” log3 are the same, this statute in so far as it applies to laborers so employed gives a lien only to “ laborers * * * contracting and engaging to * * raft logs or timber of any kind,” and only for “ compensation for services * * to the amount 'agreed upon by the contracting parties.” The lien is given to the laborers or contractors with whom the owner of the logs contracts. If he hires laborers, his laborers have a lien; if his agreement for rafting is with a contractor who is to raft the logs and employ his own help “ the contracting parties” are the owner and the contractor. The hired help or employes of the contractor are not contracting parties with the owner ; they are not his “ laborers.” If the appellee and his co-employes were in the employ of Wright, then as against Wright they had a lien on the logs for the amount which it was agreed upon by them and him that they should be paid. Had Wright made himself responsible to the men by an undertaking which bound him to pay them their wages, one whereby he would have become indebted to them for the labor, on the performance of it, we do not say that they would not have been within the statute in so far as it gives a lien ; in such a case the contract would have in law made them contracting parties with him, but such is not the fact here. Any other construction as to who are the “ contracting parties ,y within the meaning of this statute would make the logs of *172■one person subject to a lien for a greater amount than he may have agreed to pay for rafting, or at least make the ■owner’s logs liable for payment to the employe or sub-contractor under the person the owner may have contracted with, of the amount he has contracted to pay, even though he may have previously paid it to the contractor. That the former of these two results must follow is evident, if ■the “ contractor ” and his emplojms are the “ contracting parties ” within the meaning of the statute, for if they are ■such the lien is good for the amount agreed upon by them, and the result is unavoidable if the act gives the employe •or sub-contractor, under .the contract, a first lien on the logs.

It cannot be held that the language quoted from the act as giving the real meaning and purpose of it does not apply as well to “ laborers ” as to “ contractors.”

An attempt to give effect to the statute in behalf of laborers without so applying them will demonstrate our view. The construction we give to the statute is according to the meaning of its terms and is supported by authority. Jacobs vs. Knapp, 50 N. H., 71; Landy vs. Blanchard, 16 La. Ann., 173 ; Harlan vs. Rand, 27 Penn. St., 511.

It is not contended that there was any assignment by K. B. Terry of both a lien held by him for an amount actually due to him under the contract by Wright and of his, Terry’s, possession to the plaintiff, and consequently it is not necessary to discuss either such a transfer of lien and possession, or what is necessary to maintain an action of trespass de bonis asportatis against one having the general property in a chattel.

The judgment is reversed and a new trial granted.