Hill v. Callahan , 58 N.H. 497 ( 1878 )

The logs became the property of the defendant as fast as they were cut, Kronberg having reserved no lien upon them. The claimants took them by purchase from the defendant, subject to the plaintiff's right to enforce his lien, under the provisions of Gen. St., c. 125, s. 14, whereby it is enacted that "Any person, who labors at cutting, hauling, or drawing wood, bark, logs, or lumber, shall have a lien thereon for his personal services, which lien shall take precedence of all other claims, except liens on account of public taxes, to continue sixty days after the services are performed, and may be secured by attachment."

There was no privity of contract between Kronberg and the claimants, and we are unable to discover any ground upon which the defendant can be regarded as an agent or sub-contractor of the owner. The claimants were not, therefore, entitled to notice of the plaintiff's lien, as provided by Laws of 1871, c. 1, s. 2.

The marking of the logs with the claimants' mark in the woods was an act done under the direction of the claimants' agent. The title did not pass from the defendant until the logs were delivered to the claimants on the bank of the river.

The statutory lien of a lumberman commences with the commencement of his work, continues a limited time after the performance of the labor, and may be secured by attachment. All persons dealing with the owner of the property are bound to take notice of the statutory liability of an incumbrance of this nature, and must regulate their contracts and conduct with reference thereto. Bryant v. Warren,51 N.H. 213, 214, 215; Freeto v. Houghton, 58 N.H. 100.

The description of the logs contained in the mandate for their attachment was quite as definite as the nature of the case would seem to permit, and we regard it as sufficient.

The sufficiency of the precept to the officer, and of his attachment, depends not at all upon the form of the declaration in the writ or the specification, which are not intended to convey directions to the officer, but only information for the court and the defendant. Bryant v. Warren,51 N.H. 213, 216. The mandate to the officer is sufficient, if any reference therein to the character of the plaintiff's labor were required.

The referee has found that "the contract under which the plaintiff's work was done was a continuous one," by which, we suppose, is meant that it was an entire contract or job for continuous labor. If this is to be regarded as a conclusion of law, it seems fully justified by the facts disclosed. The lien, therefore, attached as security for all the labor performed in cutting or hauling the logs from the beginning of such work, and continued for a period of sixty days after the last labor was performed under such continuous contract. The object of the statute was not to secure a lien for no more than sixty days' work, or for no more labor than was actually expended during the sixty days immediately preceding the attachment, but to apply the lien to all the labor done under the contract, notwithstanding it may have occupied a period much longer than sixty days. Calef v. Brinley,58 N.H. 90; Freeto v. Houghton, before cited; Miller v. Batchelder,117 Mass. 179; Stine v. Austin, 9 Mo. 558; Monroe v. West. 12 Iowa 122; Fowler v. Bailey, 14 Wis. 125; Holden v. Winslow, 18 Pa. 160; Bartlett v. Kingan, 19 Pa. 341; Yearsley v. Flanigen, 22 Pa. 489; Derrickson v. Edwards,29 N.J. L. 468.

The attachment made within sixty days of the plaintiff's last work preserved his lien for all his work, including that done more than sixty days before the attachment.

Judgment for the plaintiff on the report.

DOE, C. J., did not sit.