Moore v. American Industrial Co.

• Decision Date: 09 May 1905
• Citation: 50 S.E. 687,138 N.C. 304
• Parties: MOORE v. AMERICAN INDUSTRIAL CO. et al.
• Court: North Carolina Supreme Court

50 S.E. 687

138 N.C. 304

MOORE v. AMERICAN INDUSTRIAL CO. et al.

Supreme Court of North Carolina

May 9, 1905

Appeal from Superior Court, Caldwell County; McNeill, Judge.

Suit by C. P. Moore against the American Industrial Company and another for the recovery of a tract of land and to remove an alleged claim or mortgage held upon the same by the defendant Samuel Newman. The defendant company owned the tract of land in controversy, and had executed a mortgage on the 20th of December, 1895, to Samuel Newman, securing a debt for $6,000 and conveying three tracts of land, which is the land in controversy in this action. A jury trial was waived, and the court found the facts. From his honor's findings of fact it appears that the defendant company became indebted to the plaintiff for certain services rendered by him in the sum of $164.90, for which plaintiff recovered judgment on the 14th of August, 1896. Execution was issued, and under it the sheriff sold the land in controversy on the first Monday in February, 1902, at which sale the plaintiff became the purchaser, and received a deed therefor from the sheriff of Caldwell county. From the judgment rendered by his honor the plaintiff appeals. Affirmed.

W. C Newland and S. J. Erwin, for appellant.

Lawrence Wakefield, for appellees.

BROWN J.

It is contended by the plaintiff as follows: (1) That the mortgage was improperly executed; (2) that the defendant Samuel Newman was an incorporator and stockholder of the defendant company and (3) that the mortgage was void as against the plaintiff's debt under section 1255 of the Code, because the plaintiff's judgment was obtained for "labor performed" for the defendant company. We agree with his honor that the words "labor performed," as used in section 1255 of the Code, do not embrace such services as were rendered by the plaintiff to the defendant company, and for which he recovered judgment set out in the record, and under which the land was sold. The findings of fact by his honor necessary to a determination of this appeal are as follows: "Fourth. I further find that in the early part of the year 1896 the plaintiff, C. P. Moore, was employed by the said corporation as its superintendent or agent, and that as such agent or superintendent the plaintiff employed hands for it and operated its sawmill in the manufacture of lumber, conducting a commissary, where the hands were supplied with goods; that the said Moore kept the books of the corporation, and had the general oversight and management of said hands and of the conduct and management of the said business of said corporation at said lumber plant, but did not work with his hands, or perform any manual labor, having merely the control and direction of the hands." The word "labor" in legal parlance has a well-defined, understood, and accepted meaning. It implies continued exertion of the more onerous and inferior kind, usually and chiefly consisting in the protracted exertion of muscular force. "Labor may be business, but it is not necessarily so, and business is not always labor. In legal significance labor implies toil; exertion producing weariness; manual exertion of a toilsome nature." Bloom v. Richards, 2 Ohio St. 387. In English statutes, and in the construction placed upon them by the English courts, this term is generally understood to designate a servant employed in some manual occupation. In Cook v. Tramway Co., 18 Q. B. Div. 684, in speaking of the definition of a laborer as used in the English employer's liability act, Smith, J., says: "The expression used, it should be noted, is not 'manual work,' but 'manual labor.' Many occupations involve the former, but not the latter; for instance, telegraph clerks, bookkeepers, and all persons engaged in writing." According to the findings of fact made by the court below in the case before us, the services rendered by the plaintiff consisted in superintending the conduct of the milling operations of the defendant company, conducting a commissary from which the hands were supplied, and keeping the books of the corporation. He did not work with his hands, or perform any manual labor, having merely the control and direction of the employés of the defendant company, and the general management of its business. The word "labore...