Johnston v. Barrills

• Decision Date: 20 July 1895
• Citation: 41 P. 656,27 Or. 251
• Parties: JOHNSTON et al. v. BARRILLS.
• Court: Oregon Supreme Court

41 P. 656

27 Or. 251

JOHNSTON et al. v. BARRILLS.

Supreme Court of Oregon

July 20, 1895

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action in attachment by T.H. Johnston and another against Joseph Barrills. James Brown and another intervened for the purpose of filing a laborers' claim. The claim was disallowed and the claimants appeal. Affirmed.

William H. Wilson, for appellants.

Dufur &amp Menefee, for respondents.

MOORE J.

This is a proceeding to establish and enforce a preferred claim to the proceeds arising from the sale of attached property. The facts are: That T.H.

Johnston and G.W. Johnston, partners doing business under the firm name of Johnston Bros., having commenced an action against one Joseph Barrills, had a quantity of grain, the property of the defendant, attached to satisfy any judgment which they might obtain against him. That within 10 days thereafter the claimants, James Brown and J.D. Jones, partners doing business under the firm name of Brown & Jones, intervened for the purpose of establishing a laborers' claim against the attached property, and under the provisions of an act of the legislative assembly entitled "An act to protect employes and laborers in their claims for wages," approved February 20, 1891 (2 Hill's Code, p. 1902) filed a statement of their claim, under oath with the sheriff who had attached said property, in which they claimed $129.88 for threshing 1,820 bushels of what and 972 bushels of oats, and demanded the payment of $100 thereon, as preferred creditors, for services performed for the debtor within 90 days next preceding the attachment. The said officer having reported the statement of said claim to the court, Johnston Bros., by their attorneys, filed exceptions thereto as follows: "(1) Said claim is not founded on a claim for wages. (2) Said claim is not the claim of an employe or laborer, but is, upon its face, and in fact, the claim of contractors. (3) That said claim is not such as is contemplated, provided for, or included in the 'Act to protect employes and laborers in their claims for wages,' approved February 20, 1891, and under which act said claimants, Brown & Jones, seek to establish their said claim as preferred. (4) That if said claim of Brown & Jones could, in the first instance, have been considered as a preferred claim upon the attached property, they, the said Brown & Jones, have waived their right, so far as the plaintiffs are concerned, in that as to these plaintiffs, they, the said Brown & Jones, have received full payment of their said original debt and claim, by receiving and accepting a negotiable promissory note for the full amount from the debtor, Joseph Barrills. (5) That the taking and accepting said negotiable promissory note by said Brown & Jones from said Joseph Barrills, as appears by the affidavit hereto attached, supporting these exceptions, was, as to these plaintiffs, full payment of their claim under their said alleged contract." With these exceptions, Frank Menefee, one of Johnston Bros.' attorneys, filed his affidavit showing that his clients were interested in the attached property to the extent of their demand against Barrills, as alleged in their complaint, and that the claimants had exhibited to him a note which they had accepted from Barrills for the full amount of their threshing debt. The facts further show that, upon due consideration of said exceptions and affidavit, the court found that they were sufficient to require the claimants to establish their demand by judgment; but, neglecting to do so, the claim was rejected, and the proceedings dismissed, from which judgment they appeal. Two questions are presented by the record for our consideration: (1) The sufficiency of the exceptions to the statement filed by the claimants; and (2) whether they are entitled to be considered preferred creditors, under the provisions of the act.

The statute (section 1 of the act supra), in substance, provides that any person interested in the property which is sought to be subjected to the preferred claim of a laborer or employé may contest the claim, or any part thereof, by filing exceptions thereto, supported by affidavit, in the court having jurisdiction of the property, and thereupon the claimant shall be required to establish his claim by judgment in such court before any part thereof shall be paid. It will be observed that the first, second, and third exceptions are equivalent to a demurrer to the statement, except the allegation in the second that it "is upon its face, and in fact, a claim of contractors," but this allegation is not supported by affidavit, while the fourth and fifth exceptions present facts intended as a defense to the statement, and the affidavit refers to them only. It is not alleged in any of the exceptions that the note was accepted by the claimants under an agreement between them and Barrills that it should discharge the debt of the latter for which it was given. "Nothing," says Lord, C.J., in Black v. Sippy, 15 Or. 574, 16 P. 418, "is better settled than that accepting a note is not payment of an account, nor is accepting one note in renewal of another payment of the old note, unless there is an agreement that the note should be accepted in payment." From all that appears in these exceptions, the claimants may have taken the note as a mere evidence of the debt, and with no agreement or intention to accept it in payment of their account. As we view the statute, the exceptions therein provided for are in the nature of an answer to a petition of intervention, and should put in issue the material allegations of the claimants'...