Wright v. Terry

• Decision Date: 23 March 1887
• Citation: 23 Fla. 160,2 So. 6
• Parties: WRIGHT v. TERRY.
• Court: Florida Supreme Court

2 So. 6

23 Fla. 160

WRIGHT v. TERRY.

Florida Supreme Court

March 23, 1887

Appeal from circuit court, Escambia county.

'PENSACOLA FLA.

'Contract with N. B. Terry for Next Drive.

'N B. Terry will take the logs on Pea or Choctawhatchie river in good driving water, and deliver to steam-boat at head of Choctawhatchie bay, leaving no logs behind, at one dollar per M.

'To meet contingencies, G. W. Wright will supply provisions and money, the money to pay off men that may be got rid of. Money for this purpose not to exceed two hundred dollars.

'All other men to be paid off by G. W. Wright or his agent at the end of the drive.

'G W. Wright to have the right to follow up drive, and see that it is a clean-up.

[Signed]

'N B. TERRY.

'It is a condition of this contract that the whole drive belongs to G. W. Wright, except logs that can be identified as the property of other persons. All logs put into the drive by other persons will be notified by Mr. Terry that he takes them with the condition that G. W. Wright is to have the refusal of such logs when they are ready for sale and delivery.

[Signed]

'G. W. WRIGHT.

'N. B. TERRY.'

Syllabus by the Court

SYLLABUS

In order that a promise made by one person to another for the benefit of a third person shall constitute the first the debtor of the third, and entitle the third person to sue the first on such promise, it must appear that there was a clear intent upon the part of both the first and the second that the first person shall become such debtor. The mere fact that the third might be benefited is not sufficient. ^[1]

The common-law lien of a bailee does not, as against the bailor, extend to employes of the former for their labor.

The act of 1875, entitled 'An act to protect laborers and lumber-men,' (section 39, p. 729, McClel. Dig.,) gives a lien only to laborers or contractors with whom the owner of the logs or lumber contracts, and not to employes of a person contracting with such owner who are not employes of the owner.

Terry and Wright entered into a written contract for a 'drive,' by the terms of which the former was to take the latter's logs at a certain point in a river, and deliver them to Wright's steam-boat, at the head of a certain bay into which it flows, at one dollar per M., and, to meet contingencies, Wright was to supply provisions and money, the money to pay off the men that might be got rid of, and not to exceed $200; 'all other men to be paid off by Wright or his agent at the end of the drive;' Wright to have the right to follow up drive, and see that it was a clean up, and the whole drive, except such logs as could be identified as the property of other persons, to belong to Wright. Held: (a) The contract did not constitute Terry an agent of Wright to employ men for the latter, and that the men employed by Terry in connection with the 'drive' were his own, and not Wright's, employes; (b) the provisions and the money to pay off the men to 'be got rid of' were to be charged to Terry, and could be credited on the amount payable by Wright to Terry for the performance of his undertaking; (c) the purpose and legal effect of the provision for payment of men 'at the end of the drive' was to authorize Wright to pay them, and charge the amount to Terry, and thereby protect himself, if he so desired, from any annoyance that might arise from Terry's not paying them, but it did not render Wright liable to such men for their pay, even though they may have known of such provision before they were employed by Terry; (d) the contract did not give the employes of Terry a lien on the logs for their labor or wages.

COUNSEL

W. A. Blount, for appellant.

Maxwell & Mollory, for appellee.

OPINION

RANEY, J.

It is contended by counsel for the appellee, J. W. Terry, that Wright was to pay the men employed by N. B. Terry; that as to these men N. B. Terry was but the agent of Wright, and their employment by N. B. Terry was in effect employment by Wright that the consideration for their employment did not proceed from N. B. Terry, but from Wright, and proceeded by his express agreement, which could have no other character than that of constituting him agent for the purpose; that appellee and his co-employes were working on the credit of Wright, and by his express contract to that end; Wright being the principal in an employment authorized by himself in a way which assumed responsibility to himself. Is this so? Considering the contract, we understand its meaning and effect to be that N. B. Terry undertakes to drive the logs from a point on Pea or Choctawhatchie river in good driving water, and deliver them to Wright's steam-boat, at the head of Choctawhatchie bay; that the compensation to be paid by Wright to N. B. Terry for the performance of this undertaking was at the rate of one dollar per thousand feet. This the first paragraph shows to be the real undertaking to be performed by N. B. Terry, and the amount of the compensation for each thousand feet so driven and delivered to be paid him by Wright.

The second paragraph provides that Wright will, to meet contingencies, supply provisions and money; the latter to be supplied to pay off men that may be got rid of, and the amount of it not to exceed $200. These men we understand to be such as may be got rid of on the trip down the river, or before the end of the drive was reached. The provisions and money to be supplied under the second paragraph were to be supplied by Wright to facilitate or enable Terry to meet the contingencies requiring provisions and those requiring money, as indicated, which might arise in the performance by Terry of his undertaking; and they, both provisions and money, were to be credited on whatever might be payable by Wright to Terry under the first clause.

The third clause, 'All other men to be paid off by G. W. Wright or his agent at the end of the drive,' was inserted for the benefit of Wright, and its effect was to give him the privilege of paying off the 'men' it refers to, and such payments were to be charged against Terry; but its effect was not to make Wright the employer or debtor of such men, nor liable in any event for more than N. B. Terry could claim under the first paragraph. The purpose was to secure Wright against any annoyance or damage which might come from the men not being paid by Terry, and it may be that both of them considered that the men might, under the statute, have or attempt to assert a lien on the logs for their wages; and the convenience it would be to Terry for Wright to have the money at the end of the drive and pay off the men may also have been within the actual contemplation of the parties. There is nothing, however, in the agreement which indicates to our minds that the men were to be the employes of Wright. It is, on the contrary, plain that 'the drive' from the starting point on Pea or Choctawhatchie river to the head-waters of Choctawhatchie bay was to be the undertaking to be performed by N. B. Terry, and to be controlled by him without any interference by Wright other than that Wright could 'follow up the drive, and see that it was a clean-up,' and this provision did not render the undertaking of Terry less a bailment for hire, to be performed by him upon his own responsibility. There is, moreover, nothing in the contract which constituted N. B. Terry the agent of Wright to hire men on Wright's responsibility as a principal. Such idea is both inconsistent with the undertaking of Terry, and the fact that the amount of the entire consideration payable by Wright is at the rate stated in the first paragraph. The subsequent paragraphs do not change the amount or rate of compensation.

The language of the third paragraph is not such as indicates a purpose on the part of Wright to bind or render himself liable to the hands it refers to for what might be due them. If its purpose had been to make him the debtor of these men, not only would it, in view of the former provisions of the paper, have been more specifically expressed, but the provision as to his agent would not have been inserted. If this clause can, in view of the rest of the contract, be construed to show a purpose upon the part of Wright and Terry to bind Wright personally as a debtor to the men, then it must also be construed as showing also an intent to bind Wright's agent individually, which would be altogether unreasonable. Instead of being an undertaking by Wright that he would become the debtor of the men who should continue or be on duty, and unpaid, at the end of the drive, we think it to be a provision intended to enable Wright to protect himself, if he saw fit to avail himself of it, against any annoyance which he might apprehend from Terry's not paying the men. It was not an agreement with any one else than N. B. Terry, nor one binding Wright to pay a larger sum of money or consideration than the first paragraph indicates. If it be said that it was a regulation of the manner of paying in part the consideration or performing the undertaking of Wright, still it was one within the control of Wright and Terry, and capable of being changed by them. If, before the end of the drive was reached, Wright had advanced to N. B. Terry all of the money that, on the completion of the drive, he could claim under the first clause, we think that neither Terry nor any one could insist on such payment being made, because it was not an agreement whereby either N. B. Terry or Wright intended that a personal liability to the men should be undertaken by Wright, but was one of convenience to Wright.

The fact that the plaintiff was shown this contract at the time he contracted with or was hired by N. B. Terry did not change its legal obligation upon Wright; or, in other words, did not make ...