Sparks v. Crescent Lumber Co.
| Decision Date | 28 June 1905 |
| Citation | 89 S.W. 423 |
| Parties | SPARKS v. CRESCENT LUMBER CO. et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Galveston County; Geo. E. Mann, Special Judge.
Action by the Darlington-Miller Lumber Company against the Crescent Lumber Company for the foreclosure of certain liens, in which B. I. Sparks was appointed receiver for defendant company. From a judgment sustaining certain laborers' liens, the receiver appeals. Reversed in part.
Rehearing denied.
Maco & Minor Stewart, for appellant. Davis & Davis, for appellees.
The Darlington-Miller Lumber Company, a corporation, sued the Crescent Lumber Company, also a corporation, to recover upon certain notes and accounts and for foreclosure of liens securing them. A receiver was prayed for and B. I. Sparks was duly appointed. A number of persons holding claims as laborers against the defunct corporation intervened for the enforcement of their claims, and asserted liens on the sawmill and planer under the act of 1897. Interveners Dowdle and Crain asserted claims earned under a contract for hauling logs by their own labor with their own teams, to be paid $3 per 1,000 feet of logs hauled by them. Interveners Barnett, Olgin, Bates, and Morton were employed in the mill and planer by the month, and performed services from November 1 to December 13, 1903; their wages for the month of November being payable December 10, 1903, and their wages for December being payable January 10, 1904. The others who intervened as laborers were employed at a fixed price per day, and each employé received what was called a "time check" at the end of each day's work. This time check was in effect a promise to pay the sum for which it was given, and was payable under the contract on the 10th of the month following its issuance. The corporation maintained what was called a "commissary," in which merchandise and supplies were kept for sale, and the holders of the time checks could exchange them at any time for their agreed equivalent in goods; but this was optional with the holder. Those not used at the commissary or assigned to local merchants in exchange for goods were on the first of the succeeding month exchanged for duebills payable on the 10th of the month, as aforesaid. Their claims are for labor performed between November 1 and December 13, 1903. A part of the claims of Dowdle and Crain, as well as of some of the laborers, were held by assignees who intervened for their enforcement; but, as no question grows out of the assignments, we do not notice them further. On January 4, 1904, the statutory affidavit was filed with the lumber company and with the county clerk in support of each of the claims for the purposes of fixing the statutory lien. The validity of the various claims as just charges against the corporation was not questioned, but other creditors resisted the asserted liens on the following grounds: As against the claims of Dowdle, Crain, and their assignees, it was contended that they did not come within the purview of the statute, because the amounts were earned under contract, rather than employment, and the statute gave no lien for the value of the use of teams. As against all the day laborers' claims for liens it was contended that the affidavits were not filed in time. As against all the claims for liens it was contended that under the terms of the statute they did not attach to the mill and planer. On the agreed facts stated above the trial court overruled the objections, gave the interveners judgment for the several amounts claimed, and held that each of the claims was secured by the preference lien provided by the statute. The receiver has appealed, and repeats here the contentions made in the court below.
The material parts of the statute under which the liens are assigned are as follows: "Whenever * * * any laborer * * * may labor or perform any services in any * * * mill * * * by virtue of any contract or agreement, * * * in order to secure the payment of the amount due by such contract or agreement * * * the * * * employés shall have a first lien upon all products, machinery, tools, fixtures, appurtenances, goods, wares, merchandise, chattels, or thing or things of whatsoever character that may be created in whole or in part by the labor of such persons or necessarily connected...
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