The Savannah And Charleston R.R. Co. v. Callahan

• Decision Date: 01 March 1873
• Citation: 49 Ga. 506
• Parties: THE SAVANNAH AND CHARLESTON RAILROAD COMPANY, plaintiff in err0r. v. DANIEL CALLAHAN, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 506

THE SAVANNAH AND CHARLESTON RAILROAD COMPANY, plaintiff in err0r. v. DANIEL CALLAHAN, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July, Term, 1873.)

Mechanics\' and laborers\' lien. Contractors. Before Judge Schley. Chatham Superior Court. May Adjoured Term, 1872.

McDowell & Callahan instituted proceedings against the Savannah and Charleston Railroad Company to foreclose a mechanics' and laborers' lien for $26,336 38. The execution issued thereon was levied upon the property of the defendant. *A counter-affidavit was filed and the property replevied. Pending the litigation the death of McDowell was suggested, and the cause ordered to proceed in the name of Callahan, as surviving partner.

For the remaining facts, see the decision.

Jackson, Lawton & Basinger, for plaintiff in error.

We understand this Court to have established the rule that the "mechanics and laborers, " to whom a lien is given by the 30th section of Article I. of the Constitution, and by the Act of 1869 in pursuance thereof, must be those who perform labor in their own persons—with their own hands—or who, in so performing labor, furnish materials for the work: 44 Georgia Reports, 306; 45 Ibid., 561; 46 Ibid., 112, 466-8; 27 Missouri, 39.

And the evidence for the plaintiff below—the admissions of Callahan himself—showed conclusively that neither he, nor McDowell, nor any other person interested as a contractor, performed labor according to the construction of the Constitution and Act of 1869, adopted by this Court.

The view of the lien taken by this Court seems to have had the assent of the General Assembly in later legislation: Acts of 1872, pam. 47; Acts of 1873, pam. 42.

Hartridge & Chisolm, for defendant.

The Constitution gives the lien to two classes, viz: mechanics as a class and laborers as a class. An overseer, though not a mechanic, is entitled to the lien if he works by the day: Rust, Johnson & Co. v. Rebecca Billingslea et al; 44 Ga., 308.

A mechanic who performs labor and furnishes materials, has a lien, although a vender of machinery has not: R. H. Footman, assignee, v. Pussy, Jones & Co., 45 Ga., 563. That two classes were intended, is also shown by another provision of the Constitution, providing that laborers on a railroad are protected in their lien even against the claims of the State. This provision also recognizes that the lienattaches to a railroad: New Code, section 5068.

*The lien is not given to the mechanic alone who does the manual work and labor unassisted. If this were true, it would have been unnecessary to name them, because the term laborer would have embraced them. The mechanic has the lien not only for his own labor, but for the labor performed by others under him, and for the material furnished.

When the Constitution was adopted, Irwin's Revised Code was also adopted: New Code, section 5145.

When the framers of the Constitution used the term mechanic, it is reasonable to suppose that they meant such mechanics as had already been the subject of legislation and mentioned in that body of laws known as Irwin's Revised Code. Who were they?

All mechanics * * * shall have a lien on every house or other property * * * for work done or material furnished. * * * Irwin's Revised Code, section 1959.

Was it the intention of that Act to give a lien to such mechanics only who built a house with their own hands unassisted? These mechanics were expected to be contractors: Irwin's Revised Code, section 1963.

All mechanics shall have a lien on all personal property manufactured or repaired by them, to the extent of the work done and materials furnished, but such lien shall cease on delivery: Irwin's Revised Code, sec. 1967.

If the owner of the property in such case should refuse to pay and the mechanic to deliver, could his possessory lien, or right to detain, be defeated by proof that the foreman of his shop did the work?

Again, all accounts of merchants, tradesmen and mechanics, which, by custom, become due at the end of the year, bear interest from that time upon the amount actually due, whenever ascertained: Irwin's Revised Code, sec. 2031.

The mechanic, then, meant by the Code in force before and at the time of the adoption of the Constitution, was one who did work or performed labor, either individually or by his agents and servants. He was not considered a daylaborer, merely; he was treated as a contractor, and his accounts were *placed upon a footing with those of merchants, tradesmen and others; they were not due and payable daily. The policy of the State seems to have been two-fold: first, to encourage mechanical skill and talent, and secondly, to secure to the laborer his wages.

If, then, the term mechanic, as used in the Constitution-has the same meaning as in the Code, for what does the Constitution give the lien? It is certainly for labor performed by him, his agents or servants, or for materials furnished. He may have the lien for the labor alone, or the materialsfurnished, or for both. In the case of R. H. Footman, assignee, v. Pussy, Jones & Company, this Court alluding to the constitutional lien quoted from the Act of 1869, page 135, in which the word and is used instead of or. The constitutional reading must control and construe the Act. If, then, the testimony disclosed the facts, as stated in the affidavit, that Callahan & McDowell were both of them practical mechanics, bridge builders, and as such, became railroad contractors, and as such, performed labor, either individually or through their servants and agents, or furnished materials, according to this contract with defendant, in the construction of the railroad which they were engaged to build, the Court did not err in refusing to dismiss plaintiffs\' case, and in allowing the jury to pass upon these facts. Others may have been interested, but it appears from the contract that the defendant contracted with the mechanics only, and relied upon their skill and ability.

WARNER, Chief Justice.

On the 10th day of May, 1869, the plaintiffs made a written contract with the defendant to construct, in a substantial and workmanlike manner, all that portion of the defendant's railroad from the west end of Coosawhatchie trestle to its junction with the Central Railroad in Georgia, including the construction of a bridge over the Savannah river, and to furnish all necessary materials for the construction of said road and bridge, in accordance with the specifications contained in said "contract, and on the full and faithful completion of said contract by the plaintiffs as specified therein, the defendant covenanted to pay them therefor the sum of $475,000 00 in its first mortgage seven per cent. bonds. The road to be constructed was part in South Carolina and part of it in Georgia. The plaintiffs, on the 2d day of April, 1870, foreclosed a mechanics' and laborers' lien for the sum of $26,336 38, which they claimed to be due them by the defendant under said contract, an execution issued, and was levied on the defendant's railroad and bridge in this State. The defendant filed a counter-affidavit, denying that the plaintiffs had any lien as mechanics or laborers in contemplation of the law, but were contractors, and also denied its indebtedness to the plaintiffs. On the trial of the issue thus...