Murphy v. Adams

• Decision Date: 26 March 1880
• Citation: 71 Me. 113
• Parties: MICHAEL MURPHY v. JOHN ADAMS and another, and logs. HENRY F. PRESCOTT v. JOHN ADAMS and another, and logs.
• Court: Maine Supreme Court

71 Me. 113

MICHAEL MURPHY v. JOHN ADAMS and another, and logs.

HENRY F. PRESCOTT v. JOHN ADAMS and another, and logs.

Supreme Judicial Court of Maine.

March 26, 1880

ON EXCEPTIONS AND REPORT.

The facts sufficiently appear in the opinion. The following are copies of the due bills and amendment referred to in the opinion.

(Due bills.)

14.19.

Due Michael Murphy for labor done in the woods for us the present winter, fourteen dollars and nineteen cents. Payable in April next.

JOHN ADAMS & CO.

Jan 15th, 1877."

" 18.52.

Due Mike Murphy eighteen dollars and fifty-two cents; it being for labor done in the woods for us the past winter. Payable the first of April next.

JOHN ADAMS & CO.

Kingfield March 20th, 1877."

" $26.65.

Due H F. Prescott, twenty-six dollars and sixty-five cents, it being for labor done in the woods for us the present winter. Payable April next.

JOHN ADAMS & CO.

Kingfield, Feb. 7, 1877."

Motion to amend.--" Somerset county. Supreme Judicial Court. September term, 1878. H. Frank Prescott vs. John Adams et al. and certain logs. And now on the first day of said term, the plff. moves to amend the writ in the action aforesaid, by inserting after the words ‘ also certain logs marked Y P X L,’ the following words, viz: ‘ and certain logs marked,’ and after the words Y P X K, and ‘ certain logs marked,’ so that the writ amended, shall read as follows, viz: ‘ and also certain logs marked Y P X L, and certain logs marked Y P X K, and certain logs marked Y P X O,’ and that the description of the marks upon the said different lots of logs in the body of said writ, wherever occurring, may be similarly amended.

STEWART & HOPKINS, Att'ys for Pl'ff."

The presiding judge allowed the amendment and W. E. L. Dillaway, claimant of the logs as assignee in bankruptcy of Moseley, Wheelwright & Co., the original owners, alleged exceptions.

By the report the full court are to draw inferences as a jury might, and enter such judgment as shall be in accordance with the legal rights of the parties.

D. D. Stewart and J. I. Hopkins, for the plaintiffs.

Pillsbury & Potter, for the claimant.

The lien given by statute is an inchoate, personal right. Pearsons v. Tincker, 36 Me. 387; Colley v. Doughty, 62 Me. 501; Rollins v. Cross, 45 N.Y. 766; Ames v. Palmer, 42 Me. 197. And being but an inchoate, personal right, to be invoked or not at the pleasure of the person for whose benefit it is given, the right to invoke it cannot be assigned or transferred to another. Pearsons v. Tincker, supra; Ames v. Palmer, supra, Daubigney v. Duval, 6 Taunton 604; Caldwell v. Lawrence 10 Wis. 332; Rollins v. Cross, supra; Fitzgerald v. First Presb. Church, 1 Mich. (Nisi Prius, ) 243; Roberts v. Fowler, 4 Abbot, Pr. (N. Y.) 263, and same case, J. E. D. Smith, 632; Foster v. Westmoreland, 52 Ala. 223; Urquehart v. McIver et al. 4 John. 102; McCombe v. Davies, 7 East. 5. The lien and the debt were inseparable while both existed, and when the plaintiff transferred the debt, fully and unconditionally, so that he had no remaining interest in it, the lien ceased to exist. In Iowa it has been decided, that, while taking a note does not extinguish the lien, the negotiation of the note is a waiver of the lien. Scott v. Ward, 4 Iowa 112.

The legislature of Wisconsin passed an act in 1859, c. 113, allowing any number of persons having liens to assign to one of their own number, and that such assignee might have the benefit of the lien act. In this case it is proposed to go farther in that direction without an act of the legislature than they could in that State under that act, for here it is not one lienor assigning to another but to outsiders.

Statutory liens are to be strictly construed, and in order to secure the benefit of these, parties must bring themselves closely within their provisions. Lord v. Woodard, 42 Me. 497; Thompson v. Gilmore, 50 Me. 428; Sheridan v. Ireland, and logs, 61 Me. 486; Stuart v. Morrison, and logs, 67 Me. 549.

The amendment to the Prescott writ was improperly allowed; because its effect was to annul the statutory limits within which a lien of that nature should be enforced, and because the rights of third parties had intervened, (the creditors of Moseley, Wheelwright & Co.) and because it introduced a new cause of action. R. S., c. 91, § 34; stat. 1876, c. 64; Frost v. Illsley, 54 Me. 345; Stuart v. Morrison, and logs, supra; Witte v. Meyer, 11 Wis. 295; Gault v. Wittman, 34 Md. 35; Phillips, Mec. Liens, 427; In re Dey, 3 N. B. Reg. 81, S. C. Blatchford, C. C. 285; Annis v Gilmore, 47 Me. 152; Milliken v. Whitehouse, 49 Me. 527; Cooper v. Waldron, 50 Me. 80; Parkman v. Nutting, 59 Me. 398; Farmer v. Portland, 63 Me. 46; Bicknell v. Trickey, 34 Me. 273.

BARROWS J.

The plaintiffs in these actions, being employed by the defendants for that purpose, respectively labored in the cutting and hauling of logs on Jerusalem township, in the winter of 1876-77; and when they quitted work, each received a due bill signed by the defendants, in legal effect a promissory note not negotiable, for the amount due him,--" it being for labor done in the woods for us the present winter, payable in April next." The defendants were operating on the township for Moseley, Wheelwright & Co., by whom they were employed to cut and haul logs by the thousand. The plaintiffs not being paid for their labor, these suits were commenced in June, 1877, and a lien upon the logs claimed therein, and the logs were seasonably attached. Moseley, Wheelwright & Co. procured receipters for the logs, and subsequently having gone into bankruptcy, their assignee now appears to claim the logs, and resist the rendition of any judgment to enforce the lien thereon, because, he says, the lien ceased to exist before the commencement of the suit, by reason of the fact that the plaintiffs respectively sold their claims to other parties, and ceased to have any interest in the enforcement of the lien. Prescott's claim is represented by one due bill which he appears to have sold about the time he came out of the woods, in February, to one Winter, a trader in the vicinity of the operation, to whom he subsequently gave a written assignment of the claim, having indorsed the due bill at the time of its sale and delivery.

Murphy worked at two different periods during the season, received two of the non negotiable due bills, and got one of them cashed by Winter, and the other by one Parker, merely placing his name on the back of the due bills when they were sold and delivered. Now the claimant of the logs insists, that, by these proceedings, the lien (which he says is a mere personal right to be enforced by and for the benefit of the laborer only,) was destroyed, and that it cannot be made to inure to the benefit of those who have paid the laborers and become the purchasers of their claims.

The case shows that in the present instance a large number of the laborers' claims were thus taken at a small discount by Winter, presumably relying on the lien to secure payment; and the probable extent of the practice among laborers in lumbering operations, of realizing their dues at an early day in this mode, makes it desirable to have the point definitively settled.

The groundwork of the claimant's argument is in the position he takes that the laborer has ceased to have any interest in the collection of the sums due for his work, and that the lien, being but a personal right, to be enforced for his benefit only is destroyed when a third party has paid him for his claim.

In the present case, inasmuch as the laborers indorsed the non negotiable due bills which were given them in blank to the parties who advanced the money for them, the claimant's position cannot be maintained if it be true as laid down in the text books that " an indorsement in blank of a note not negotiable is an undertaking that it may be collected of the maker by using due diligence, which consists in demand on its becoming due; and in case of non payment, the maker being solvent, in immediate suit with attachment where it is allowed, followed by the most vigorous measures for collection." Bayley on Bills, 2d Am. ed. 152, citing Prentiss v. Danielson, 5 Conn. 175; Huntington v. Harvey, 4 Conn. 124. In Seymour v. Van Slyck, 8 Wend. 403, it was held that the indorser of a note not negotiable has no right in an action by his indorsee against him, to insist upon previous demand and notice " because his indorsement is equivalent to a guaranty." If these plaintiffs are liable as guarantors of the due bills, they have just as much interest in the enforcement of the lien as if they never had received the money on them from anybody.

But aside from this, and independent of any guaranty by the laborer that the amount due him is collectible by the use of due diligence, we cannot find either in principle or sound authority any good reason for holding that the transfer by the laborer to a third party of an equitable interest in the sum due him for his labor should work a forfeiture of his lien. The object of the statute giving the lien is to make certain the payment for the labor which has gone to increase the value of the timber; (see Spofford v. True, 33 Me. 284); and it would detract much from the benefit designed to be conferred to hold that the laborer must necessarily personally incur all the delay and expense that not unfrequently arise from the tedious litigation...