Hutchins v. Blaisdell

• Decision Date: 09 October 1909
• Citation: 75 A. 291,106 Me. 92
• Parties: HUTCHINS v. BLAISDELL et al.
• Court: Maine Supreme Court

75 A. 291

106 Me. 92

HUTCHINS

v. BLAISDELL et al.

Supreme Judicial Court of Maine.

Oct. 9, 1909.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Charles S. Hutchins against Herbert Blaisdell and certain lumber to enforce a lien for labor on the lumber. To an adverse judgment, plaintiff excepts. Exceptions overruled.

Argued before WHITEHOUSE, PEABODY, SPEAR, CORNISH, KING, and BIRD, JJ.

A. L. Kavauaugh, for plaintiff.

George C. Wing and F. O. Purington, for owner of lumber.

CORNISH, J. Action of assumpsit, in which the plaintiff seeks to enforce a statutory lien for labor performed for the defendant, upon lumber, under the following account annexed: "To hauling 158.221 feet of lumber, 60 cents per M, $94.93." Rev. St. c. 93, § 46, under which this lien is claimed, provides: "Whoever labors at cutting, hauling, rafting or driving logs or lumber * * * has a lien on the logs and lumber for the amount due for his personal services and the services performed by his team." The account annexed comes within this provision, but the plaintiff himself testified that under his contract with Blaisdell he agreed to "haul and stick" the lumber for 60 cents per thousand, and that in fact he did haul it from the mill about 200 yards into a clearing and there "stuck" it. The presiding justice ruled that, inasmuch as the labor included "sticking," there was no lien. The plaintiff thereupon moved to amend his writ, so as to establish a claim for hauling only. This motion was denied, on the ground that the price for hauling and sticking could not be apportioned. The case is before this court on plaintiff's exceptions to both rulings.

1. Does the statute give a lien for sticking lumber? We think not. The evidence is barren of any explanation of the term, but it is familiar knowledge that it is the process of placing thin strips of wood between layers of boards or timber, in order to secure a proper circulation of air and the consequent seasoning of the lumber without warping or decay. It is not a necessary incident of hauling, but a distinct and independent branch of work, that requires experience and skill in order to accomplish the best results. The work must be carefully done, and requires time, for lumber improperly stuck may be greatly damaged. One crew may be, and often is, hired to haul, and another to stick. A man may be competent to do the one, but incompetent to do the other. A contract to haul would include loading and unloading, but would not be construed to include sticking, because not all lumber is required to be stuck, and a contract to haul and stick would not be fulfilled by simply hauling and unloading in piles. The Legislature might well have provided a lien for such work; but it has not yet done so, and the court cannot create it. The case of Bondur v. Le Bourne, 79 Me. 21, 7 Atl. 814 relied upon by the plaintiff, is readily distinguishable in its facts from the case at bar, but rested upon the same legal principle adopted here. The claim in that case was for cutting, peeling, and piling poplar lumber for pulp. The court granted the lien on the express ground that the evidence showed that the additional work was a necessary incident of the cutting. The court say:

"To be sure, the contract was specific in terms to prevent any misunderstanding, and included 'peeling and piling,' as well as 'cutting,' which term alone is mentioned in Rev. St. c. 91, § 38, as being the foundation of a lien. But it was poplar, cut into logs four feet in length, for the particular purpose of being manufactured into pulp. Moreover, the evidence is that it must be 'peeled' before it can be thus manufactured, not, as in the case of hemlock, because the bark is of any value, but in order to fit it for manufacture, and which is as essential as cutting, and, as one of the witnesses testifies, 'peeling is an incident and necessary to it as pulp lumber.' Of course, it must be 'piled' by the chopper, who cuts it by the cord, in order that his surveyor might ascertain the quantity and thereby furnish him the means of knowing how much he was entitled to under the contract, which was to be $1.25 per cord."

In the case at bar the lien is denied on the ground that the additional work was not a necessary incident of the hauling.

The plaintiff asks for a liberal, the defendant for a strict, interpretation of the statute; but the safer way lies in the middle course— such a construction as the language fairly imports. In answer to the same suggestions made in Blanchard v. Railway Co., 87 Me. 241, 32 Atl. 890, in regard to the construction of a similar statute providing a laborer's lien, this court defines its position in these words:

"it may not be out of place to add that the statute under consideration is not strictly remedial; that, while it confers benefits, it also imposes burdens; that,...