Hogan v. Cushing

• Decision Date: 20 April 1880
• Citation: Hogan v. Cushing, 49 Wis. 169, 5 N. W. 490 (Wis. 1880)
• Parties: HOGAN v. CUSHING and others, imp
• Court: Wisconsin Supreme Court

5 N.W. 490

49 Wis. 169

HOGAN v. CUSHING and others, imp

Supreme Court of Wisconsin

April 20, 1880

Argued March 31, 1880

APPEAL from the Circuit Court for Chippewa County.

In this case there was a personal judgment against the defendant Patrick O'Neill, for $ 768.73, and it was further adjudged that plaintiff had a lien for that amount upon certain logs and timber described in the complaint. Cushing and others, co-defendants of O'Neill, appealed from the latter part of the judgment.

Judgment affirmed.

For the appellants there was a brief by Jenkins & Boland, and oral argument by Mr. Jenkins.

Arthur Gough, for the respondent.

OPINION

HARLOW S. ORTON, J.

This action is brought to enforce the statutory lien provided by chapter 95, Laws of 1877, upon the logs of the appellants for the labor and services of the respondent, by his teams and servants, in putting them into the Chippewa river. It is in proof that the respondent himself, personally and manually, did but little of such work, and that it was done mainly by his teams and servants; and it is contended that for such services by others in the work, and in using the teams, although by the employment and for the use of the respondent, the statute does not confer a lien upon the logs for his benefit.

This cannot be the construction of our statute, whatever may be the construction of similar statutes of other states, of different language, as in Maine, where the statute expressly limits the lien to personal services. There are in our statute no such restrictive words; and the language "labor and services" should be construed as broadly as its common use will warrant, which would include such labor and services when performed by servants and agents, as well as personally, as in the common count in assumpsit for work and labor. The lien, being given as well to any "company or corporation," must necessarily include labor and services not personally and manually performed. That the labor in this case was performed for the contractor with the owners of the logs, or his subcontractor, is no objection to the lien claimed. Munger v. Lenroot, 32 Wis. 541.

The respondent and O'Neill, who employed him to do the work both testify that they were not jointly interested in this particular work, as partners or otherwise. The only evidence of such copartnership is the testimony of one Michael Maloney, that he "asked the [respondent] if he was partner...