Hale v. Brown , 59 N.H. 551 ( 1880 )

I. The referee has determined the fact that the contract in relation to cutting and hauling the spruce lumber was "an entire continuous contract," by which we understand him to mean a contract for an entire undertaking, to be commenced and continued until its completion. If the fact be so, the conclusion of the referee was correct, that the plaintiff's lien, if he had any, extended to the whole of the spruce lumber, as security for the balance due him for cutting and hauling it, a portion of the entire contract, continuous labor, having been performed within sixty days prior to the commencement of the action. Gen. St., c. 125, s. 14; Bryant v. Warren, 51 N.H. 213; Freeto v. Houghton, 58 N.H. 100; Hill v. Callahan,58 N.H. 497, and cases there cited.

II. It appears that the spruce lumber was cut and hauled under a verbal contract, by which the plaintiff engaged to cut and haul from the Hanson lot to the defendants' saw-mill all the spruce lumber he could cut and haul during the sledding season, after he had finished cutting and hauling certain pine lumber in fulfilment of a previous written contract with the defendants. For this service the defendants agreed to pay him five dollars per thousand feet. Here was an entire contract. It was distinct from the previous written contract. "If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is proportional to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable." But "if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and independent items." 2 Pars. Con. 517. Here were two contracts; but the latter, though severable from the former, was entire in itself. We are unable to see how or why the fact that the plaintiff commenced operations on the verbal contract relating to the spruce lumber earlier than it was understood he would begin, and the fact that he never finished the prior contract, in any way tend to break the continuity or entirety of the latter contract. The consideration is single and entire, and the contract was definite and certain; because that is certain which may without difficulty be made certain. The lumber to be cut and hauled was determined, as to time, by the termination of the sledding season; as to quantity, by measurement; as to price, by arithmetical computation.

III. Does the plaintiff's lien extend to the labor of his servants and teams? Prior to the enactment of the Gen. Laws, any person performing labor towards building or repairing any vessel, or a house or other building, was entitled to a lien on the building for the labor which he should perform "by himself or others," while the lien of a lumberman was limited to his "personal services." Gen. St., c. 125, ss. 9, 11, 14. Although the legislature has apparently abolished this discrimination against lumbermen (Gen. Laws, c. 139, s. 13), we must apply to this contract the law as it existed when the contract was made and executed; and by that law it was declared, that "any person who labors at cutting, hauling, or drawing wood, bark, logs, or lumber, shall have a lien thereon for his personal services." Gen. St., c. 125, s. 14.

The defendants claim that the term "personal services" is so far restrictive that the lienor can take security and precedence of other claimants only to the extent of the product of the work accomplished by his own hands; and that none of the work produced through the labor of his agents or servants, his teams or his implements, can be included in the security of the lien. But it is manifest that an interpretation so narrow as this was never intended. The lumberman may cut down trees; therefore he must use an axe; — he may haul and draw lumber; therefore he must use chains, and probably sleds and oxen, or horses. The legislature could not have intended to exclude these appliances, without which it would be impossible to perform the labor. We have therefore little hesitation in holding that the personal services of the lumberman include the use and the earnings of his own oxen, chain, cant-hook, and his own team and sled, if these are actually used by him and are essential to the service rendered. We do not, in this case go so far as to hold that, if the claimant did not labor himself, or if, acting as a common laborer, he loaned the use of his team on the same work, he could successfully claim the benefit of the lien on account of his team. Possibly this was the real question decided in the two cases cited by the plaintiff on this point — McCrillis v. Wilson,34 Me. 286, and Coburn v. Kerswell, 36 Me. 126.

Whether a person in the plaintiff's position, a contractor, one, who assumes the responsibility of performing a certain piece of work, and employs and superintends others in the performance of it, "labors," within the meaning of the statute granting one a lien for his "personal services," might be a question of no little difficulty in the absence of any judicial construction of this or similar statutes. The stock-broker, the clergyman, the student, the farmer, and the wood-chopper, all labor, but in different ways, requiring the exercise of different mental and physical powers. From the original and comprehensive meaning of the word itself, no reason, perhaps, could be suggested why a person who accomplishes a certain amount of work by the exercise of his mental powers, in connection with the physical exertion of others, could not be said to labor. The two classes or kinds of labor are dependent, the one on the other, and without both nothing would be accomplished. But when we study the legislative intention in the enactment of a law granting those who work chiefly through physical means certain privileges, it is possible to see that the term labor is used in a restricted sense, and not in its broad and comprehensive meaning. The object of the lien laws, now almost universal, is not doubtful, on authority at least. One purpose may have been to protect the laboring man, the man whose subsistence depends on the wages earned by his own manual labor, from the reckless improvidence of his employer, and to furnish him with ample security for his earnings, which ordinarily he could not successfully demand. If this was the intention of the legislature in the passage of the law in question, then it follows that it does not apply to contractors employing men and teams to cut and haul timber, doing no manual labor themselves, and deriving their compensation from the profits realized. Most of the authorities that we have examined support this view of the law, except in cases where, from the wording of the statutes, a different intention clearly appeared. And we are not disposed to question the wisdom of those cases. Weymouth v. Sanborn,43 N.H. 171; Balch v. N. Y. O. M. R. R., 46 N.Y. 521; Parker v. Bell, 7 Gray 429; Stryker v. Cassidy, 17 N.Y. (S.C.) 18; Wentroth's Appeal, 82 Pa. St. 469; Jones v. Shawhan, 4 N. S. 257; Ericsson v. Brown, 38 Barb. 390; Aiken v. Wasson, 24 N.Y. 482; Sullivan's Appeal, 77 Pa. St. 107; Winder v. Caldwell, 14 How. 434; Hoatz v. Patterson, 5 W. S. 538.

The case of Jacobs v. Knapp, 50 N.H. 71, may appear to be in conflict with this view. But the exact point decided in that case was, not that a contractor has a lien for the work of the men employed by him, but that there can be no lien without a contract, express or implied, with the owner of the logs, and that no contract could be implied, under the statute as it then existed, between the owner and one of the contractor's laborers. The dictum of the court, to the effect that the contractor might have a lien covering the wages of his men, may have been true at that time, as an expression of the apparent legislative intention, the evil thus avoided being the anomaly of double liens. But subsequently the legislature provided by amendment (Laws of 1871, c. 1, s. 2) that "any person who labors at cutting, hauling, or drawing wood, bark, logs, or lumber, by himself or others, under a contract with an agent, contractor, or sub-contractor of the owner thereof," by giving a prescribed notice, might have a lien for his wages. Under this statute there can be little doubt, we suppose, that the laborer himself may have security for his own personal services in his own name, and is not compelled to rely solely on the honesty of the contractor. This enactment furnishes strong evidence that the law was intended to protect the laborer, the man who performs the manual work, and that it was not the intention, when this amendment was made, that there should be a confusion of opposing liens, the contractor having a claim for the wages of all his men, and each man having a claim for himself.

The facts do not show that the plaintiff performed any personal labor in the sense before indicated. But the statute, being intended to apply the lien only to the personal manual labor of the claimant, it cannot be applied in a case where his labor is undistinguishably combined with the labor of other persons procured upon the responsibility of the plaintiff (persons not in privity of contract with the defendants), and for the purpose of accomplishing a work which the plaintiff has undertaken to do. No means are furnished by which it is possible for us to extricate the privileged labor from the other ingredients composing the general result, and to ascertain its value. Robbins v. Rice, 18 N.H. 509. Unless the value of the plaintiff's manual labor, if he did any, can be ascertained, there must be judgment for the defendants; but if it is desired, a motion may be made at the trial term to have the report recommitted to ascertain the value of the plaintiff's individual labor.

Case discharged.

STANLEY, SMITH, and CLARK, JJ., did not sit: the others concurred.