Moore v. . Industrial Co. , 138 N.C. 304 ( 1905 )

This was a civil action for the recovery of a tract of land and to remove an alleged claim or mortgage held upon the same by the defendant Samuel Newman. The defendant company owned the tract of land in controversy, and had executed a mortgage on 20 December, 1895, to Samuel Newman, securing a debt for $6,000 and conveying three tracts of land, which is the land in controversy in this action. A jury trial was waived and the court found the facts. From his Honor's findings of fact it appears that the defendant company became indebted to the plaintiff for certain services rendered by him in the sum of $164.90, for which plaintiff recovered judgment on 14 August, 1896. Execution was issued, and under it the sheriff sold the land in controversy on the first Monday in February, 1902, at which sale the plaintiff became the purchaser and received a deed therefor from the sheriff of Caldwell County. From the judgment rendered the plaintiff appeals. It is contended by the plaintiff as follows: (1) That the mortgage was improperly executed; (2) that the defendant Samuel Newman was an incorporator and stockholder of the defendant company; and (3) that the mortgage was void as against the plaintiff's debt under section 1255 of The Code, because the plaintiff's judgment was obtained for "labor performed" for the defendant company.

We agree with his Honor that the words "labor performed," as used in section 1255 of The Code, do not embrace such services as were rendered by the plaintiff to the defendant company and for which he recovered judgment set out in the record and under which the land was sold. The findings of fact by his Honor necessary to a determination of this appeal are as follows: "Fourth. I further find that in the early part of 1896 the plaintiff, C. P. Moore, was employed by the said corporation as its superintendent or agent, and that as such agent or superintendent the plaintiff employed hands for it and operated its sawmill in the manufacture of lumber, conducting a commissary where the hands were supplied with goods; that the said Moore kept the books of the corporation and had the general oversight and management of said hands and of the conduct and management of the said business of said corporation at said lumber plant, but did not work with his hands or perform any manual labor, having merely the control and direction of the hands." The word "labor" in legal parlance has a well defined, understood, and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. "Labor may be business, but it is not necessarily so, and business is not always labor. In legal significance labor implies toil, exertion producing weariness; manual exertion of a toilsome nature." Bloom v. Richards, 2 Ohio State, 387. In (306) English statutes, and in the construction placed upon them by the English courts, this term is generally understood to designate a servant employed in some manual occupation. In Cook v. Tramway Co., 18 Q. B. Div., 684, in speaking of the definition of a laborer as used in the English Employer's Liability Act, Smith, J., says: "The expression used, it should be noted, is not manual work, but manual labor. Many occupations involve the former, but not the latter; for instance, telegraph clerks, bookkeepers, and all persons engaged in writing." According to the findings of fact made by the court below in the case before us, the services rendered by the plaintiff consisted in superintending the conduct of the milling operations of the defendant company, conducting a commissary from which the hands were supplied, and keeping the books of the corporation. He did not work with his hands or perform any manual labor, having merely the control and direction of the employees of the defendant company and the general management of its business. The word "laborer" has a definite and fixed meaning in the Constitution and legislation of this State. In Article IV, section 4, of the Constitution, it is provided that the General Assembly shall enact suitable legislation for the purpose of giving to mechanics and laborers all adequate lien on the subject-matter of their labor, and in pursuance of this provision the Mechanic's and Laborer's Lien Law, The Code, chapter 41, was enacted by the General Assembly. Words used in legislation which have a technical meaning are supposed to be used in that sense. Worcester defines a laborer to be one who labors; one regularly employed at some hard work. Webster defines a laborer to be one who labors in a tiresome occupation; one who does work that requires little skill, as distinguished from an artisan. In Georgia a laborer has been adjudicated to be one who performs manual labor. Adams v. Goodrich, 55 Ga. 335. To the same effect is Hebener(307) v. Chave, 5 Pa. St., 117. These cases are cited and approved by this Court in Whitaker v. Smith, 81 N.C. 340. See, also, Cookv. Ross, 117 N.C. 195. A bookkeeper is not a laborer and does not come within the act giving a laborer a lien for his services. Nash v.Southwick, 120 N.C. 459. A clerk or bookkeeper is not a laborer. Cole v.McNeil, 99 Ga. 250; Epps v. Epps, 17 Ill. 196. One who acted as general manager, superintendent, and bookkeeper and clerk is not a laborer.Wakefield v. Fargo, 90 N.Y. 214; Coffin v. Reynolds, 37 N.Y. 640. There are innumerable cases in which the terms labor and laborer have been confined to such services as were rendered by manual labor. Trinity Churchv. U.S., 143 U.S. 464; Winder v. Caldwell, 14 How. (N. Y.), 434; Parkerv. Bell, 7 Gray (Mass.), 429; Brockway v. Inniss, 39 Mich. 47; Wildner v.Ferguson, 42 Minn. 112; Farinholdt v. Lockhard, 90 Va. 938.

We are of opinion upon the facts found by the court below that the plaintiff is the owner of the land in controversy, subject to the lien of the mortgage of the defendant, Samuel Newman, which is the first lien thereon. It appears that in the judgment of the court provision is made for the foreclosure of the mortgage; therefore, the cause will be remanded to the Superior Court of Caldwell to the end that the said decree may be enforced, and unless the plaintiff pays the mortgage, as required therein, a decree will be entered appointing a commissioner, who will proceed to sell the land in accordance with the decree of his Honor, Judge McNeill. If upon a sale of the property it should bring more than the mortgaged indebtedness, so far as now appears to us from this record, the surplus, after payment of all costs and expenses of sale, will belong to the plaintiff. The cause is remanded and the judgment of the Superior Court is

Affirmed.

Cited: Cox v. Lighting Co., 152 N.C. 167; Stephens v. Hicks,156 N.C. 241; Iron Co. v. Bridge Co., 169 N.C. 514.

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