Brogan v. McEachern

• Decision Date: 21 November 1907
• Citation: 68 A. 822,103 Me. 198
• Parties: BROGAN v. McEACHERN.
• Court: Maine Supreme Court

68 A. 822

103 Me. 198

BROGAN

v. McEACHERN.

Supreme Judicial Court of Maine.

Nov. 21, 1907.

Exceptions from Supreme Judicial Court, Piscataquis County.

Ten actions of assumpsit, each on an account annexed against Alexander McEachern and logs—one by J. S. Brogan, another by Andrew McKinnon, another by James Richard, another by Joseph Robitaille, another by Joseph Carter, another by Alonzo Johnston, another by Donald Murray, another by James Kennedy, another by Colin McEachern, and another by Gardiner Pickett. In each action Thomas Gilbert, the owner of the logs, appeared to defend the Hen alleged. Verdict in each case for plaintiff therein, and said Thomas Gilbert excepts and moves for a new trial. Exceptions and motion overruled.

Ten actions of assumpsit, each on an account annexed, against the defendant Alexander McEachern. The plaintiff had been employed by the said defendant McEachern in a logging operation carried on by him for Thomas Gilbert, the owner of the logs. In each action the plaintiff claimed a lien for labor on or about the logs in the logging operation, and logs were attached on each writ, in these actions, to enforce the alleged lien.

In each writ, in the command to the officer to attach logs, a facsimile of the mark on the logs was given and next after the facsimile the following was added: "(T diamond-girdle G)."

In each action Thomas Gilbert, the owner of the logs, appeared to defend the alleged lien, and thereby became a party defendant so far as the attached logs were concerned.

In the first of the above-entitled actions the defendant Gilbert filed a plea as follows: "State of Maine, Piscataquis—ss.:

"Supreme Judicial Court,

"February Term, A. D. 1907.

"J. S. Brogan v. Alexander McEachern and Certain Pine and Spruce Logs Marked [here follows a facsimile of the mark on the logs] (T-diamond-girdle-G) and Being the Same Logs That Were Cut the Past Winter by Said McEachern and Landed on Ship Pond Stream, in Elliottsville Plantation in the County of Piscataquis, in Said State, Said Logs Being the Property of Thomas Gilbert or Persons Unknown.

"And now, Thomas Gilbert, owner of the logs above described, comes and defends, etc., when, etc., and for plea says that the defendant Alexander McEachern never promised the plaintiff in manner and form as the plaintiff in his writ and declaration has declared against him and of this he puts himself on the country.

"By J. B. Peaks, His Attorney."

In addition to this plea, the defendant Gilbert also filed the following brief statement: "And for brief statement said Gilbert further says that the plaintiff has no lien on the logs described in his writ and as therein alleged by him, and of this he claims a trial of the issue."

A similar plea, with the necessary change as to name of plaintiff, and a similar brief statement, was filed by the defendant Gilbert in all the other actions.

These 10 actions were all tried together at the February term, 1907, of the Supreme Judicial Court, Piscataquis county. The verdict was for the plaintiff in each action for the amount legally due him for labor on the logs. Also in each action the following questions were submitted to the jury: (1) "Were the logs described in the writ the same logs which were attached and returned by the officer?" (2) "Did the plaintiff have a lien on the logs described in his writ?" (3) "If the plaintiff had such lien, was it continued by the attachment and return of the officer?" The jury answered each question in the affirmative.

During the trial of these actions, the plaintiffs offered evidence that the defendant, McEachern, drew orders upon the said Thomas Gilbert, the owner of the logs attached, "for the payment of the several sums due the plaintiff by order of Thomas Gilbert, and that Thomas Gilbert promised the said Alexander McEachern that he would see the orders paid." The said "Thomas Gilbert seasonably objected to this testimony, because the actions were not upon the orders, but were an attempted enforcement of lien claims." This testimony was admitted, and the defendant Gilbert excepted. The defendant Gilbert also filed a general motion in each of the aforesaid actions to have the verdict set aside.

The case shows that the defendant McEachern had given each plaintiff an order on the defendant Gilbert for the amount due him, and that these orders were all sold by the several plaintiffs to the Moosehead Clothing Company. The case also shows that some of the plaintiffs had labored from two to eleven Sundays each on the logs, but that at the trial all these Sunday items were struck out.

All the material facts appear in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, CORNISH, and KING, JJ.

J. S. Williams and W. E. Parsons, for plaintiffs. Joseph B. Peaks, C. J. Dunn, and C. W. Hayes, for defendant Thomas Gilbert.

STROUT, J. The above 10 cases were tried together. In each a lien was claimed upon the logs attached for labor on and about them in a logging operation, carried on by the principal defendant, for Thomas Gilbert, the owner of the logs. The question in all of them was whether each plaintiff had a lien, and had perfected it in accordance with the statute. Upon this question the evidence was practically the same in each case, except some minor difference alleged as to the officer's certificate of attachment to the...