Forsberg v. Lundgren

• Decision Date: 04 August 1911
• Citation: 117 P. 244,64 Wash. 427
• Parties: FORSBERG et al. v. LUNDGREN et al.
• Court: Washington Supreme Court

117 P. 244

64 Wash. 427

FORSBERG et al. v. LUNDGREN et al.

Supreme Court of Washington

August 4, 1911

Department 2. Appeal from Superior Court, Skagit County; George A Joiner, Judge.

Action by the Grassmore Shingle Company against Albert Lundgren and F. Hedstrom, copartners, doing business as Lundgren &amp Hedstrom, and Gus Pearson, in which the Pacific Fir Company was summoned as a garnishee, and in which Gust Forsberg and others intervene, claiming a lien on railroad ties. From a judgment denying their claim to certain ties, Gust Forsberg and others appeal. Reversed and remanded, with directions.

Million Houser & Shrauger, for appellants.

Coleman & Gable, for respondents.

ELLIS J.

The appellants were laborers employed by the respondents Lundgren and Hedstrom in cutting and manufacturing railroad ties in the woods near the line of the Great Northern Railway, in Skagit county, Wash. They began the work some time in August, 1909, and ceased on June 16, 1910. The ties as completed were from time to time delivered upon the right of way of the railway company, and were sold to respondent Pacific Fir Company, which company turned them over to the railway company. Usually an inspector of the railway company inspected the ties on the right of way from the 1st to the 10th of each month, and they were usually removed during that month by the railway company. Such an inspection was made on June 4, 1910. There were then upon the right of way 1,731 inspected and accepted ties. Before June 16th, the railway company removed these ties outside of the state. By June 16th, when the appellants quit work, there had again accumulated 700 ties upon the right of way. These still remained there when, on June 30th, appellants filed their notice, claiming a lien upon these 700 ties, and also upon the 1,731 ties which had been removed. On April 25, 1910, respondent Pearson took from Lundgren and Hedstrom an assignment, addressed to Pacific Fir Company, as follows: 'Until further notice, please pay to the order of Mr. Gus Peterson, of Seattle, all moneys that may become due us hereafter for ties inspected and accepted for our account.' On the same day this order or assignment was served upon the Pacific Fir Company.

On June 9, 1910, respondent Grassmere Shingle Company began an action against Lundgren, Hedstrom, and Pearson, or Peterson, and garnished the Pacific Fir Company. That company answered in the present action, admitting the purchase of the ties from Lundgren and Hedstrom for $467.37, which sum it tendered into court in this case, and was by consent of all concerned discharged from further liability on account of the garnishment.

The trial court sustained the appellant's lien upon the 700 ties remaining upon the railroad right of way, but denied a lien upon the 1,731 ties which had been removed, or upon the proceeds thereof then in the registry of the court, whereupon this appeal was taken.

The sole question for our consideration is whether under these admitted facts the appellants are entitled to a lien upon the 1,731 ties, or the proceeds thereof.

The right of lien, if it exists at all, must be found, either in section 1162 or section 1163, of 1 Rem. & Bal. Code. Section 1163, is as follows: 'Every person performing work or labor or assisting in manufacturing sawlogs and other timber into lumber and shingles, has a lien upon such lumber while the same remains at the mill where it was manufactured, or in the possession or under the control of the manufacturer, whether such work or labor was done at the instance of the owner of such logs or his agent or any contractor or subcontractor of such owner. The term lumber, as used in this chapter, shall be held and be construed to mean all logs or other timber sawed or split for use, including beams, joists, planks, boards, shingles, laths, staves, hoops, and every article of whatsoever nature or description manufactured from sawlogs or other timber.' This section cannot apply to any of the ties here in question for two reasons: First, because it only contemplates a lien on things manufactured at a mill; and, second, because it only accords the lien while the things remain at the mill where they were manufactured, or in the possession or under the control of the manufacturer. While the term 'lumber' is defined in the last sentence of this section, still the definition there given, when applied to the word 'lumber' as used in this section, can only include articles manufactured from sawlogs or other timber when manufactured at a mill. The definition is broad enough to include railroad ties, but the context excludes ties manufactured elsewhere than at a mill from the operation of the lien.

It follows that if a lien can be maintained on any of these ties it must be under 1 Rem. & Bal. Code, § 1162, the pertinent part of which is as follows: 'Every person performing labor upon, or who shall assist in obtaining or securing sawlogs, spars, piles,...