Lohman v. Peterson

Newman, J.

The motion for a nonsuit presents theques•tion whether there was sufficient evidence to justify a verdict for the plaintiff. The statute on which the action is founded is ch. 139, Laws of 1891. So much as is involved in-the decision is as follows: “Sec. 1. Any person who shall do or perform any labor or services in cutting, hauling . . . any logs or timber . .• . shall have a lien •uponsuch logs, timber,lumber, cord-wood, railroad ties . . . •for the amount due or to become due for such labor or services. . . . Sec. 6. Any person who shall cause the property upon which such lien exists to be transported out of the state - of Wisconsin, or who shall secrete or destroy the same or so change its character as to prevent the lien claimant from subjecting the same to the payment' of his *229 claim, shall be liable to such lien claimant for the amount of his claim, as and for a conversion.” The plaintiff claims that he had a lien upon the ties, and that the defendants caused them to- be transported out of the state of Wisconsin.

Statutes which give a right of lien are deemed remedial statutes, and are liberally construed, in order to bring within their operation- all cases intended by the legislature to be within the intended benefits. No other cases are to be included by construction. The evident object of this statute is to secure to such persons as do manual labor upon logs or timber their pay for their labor. The terms of the statute are, “Any person who shall do . . . labor or services ” shall have a lien. A similar statute has been construed to include, not mereH the personal and manual labor of the claimant himself, but also that of1 his servants, with his teams. Hogan v. Cushing, 49 Wis. 169 . What a man does by another, for many purposes he is said to do by himself. In this case the plaintiff did no manual, labor for the defendants, either personally or by his servant. It seems like straining the meaning of words to say that he, did or performed labor by his ox. The ox was ,hired to Gundersgord. It was used by him. For that service, it-was Gundersgord’s team. He had a right to a lien upon the same ties for his services, including the services of that-team. Kelley v. Kelley, 77 Me. 135 . It was hired-to him with no reference to this particular work, but generally.Its time was hired at an agreed price per day, for all the time it was kept by Gundersgord, whether it worked or not, and w'hether it -worked on defendants’ ties or not. The evidence does not show how much work the plaintiff’s ox did on defendants’ ties. The claim is not made with reference to that fact, but with reference to the time it was absent from the plaintiff’s home. It is held that the plaintiff’s evidence failed to show that the plaintiff had done or *230 performed ]abor or services on the defendants’ railroad ties within the meaning of the statute.

But, if this were otherwise, the result of the suit must be the same, for it is not shown that the defendants caused the ties to be transported out of the state. The defendants sold the ties to the railroad company. This could be no wrong to the plaintiff, even if he had a right of lien. The railroad company took them subject to any claim which the plaintiff had against them. Laws of 1891, ch. 139, sec. 4. The railroad company removed them. The sixth section of the act under which the action is brought is penal in its nature, and requires a strict construction. Onljr those cases are within the provisions of this section which are fairly within the meaning of its terms, according to the common and approved usage of the language. Giving to the words only their common and natural meaning, there is no evidence which tends, even, to show that the defendants caused the ties to be removed at all. The}*- simply sold the ties. That was not, in natural or legal effect, to cause them to be removed.

Nor is there any evidence to show that the ties have been transported out of the state. There is no evidence show-. ing to what place they wrere taken. Without proof of this fact, the plaintiff could not recover, however clear his right on the other grounds relied upon.

By the Court.- — -The judgment of the circuit court « reversed, and the cause remanded for a new trial.