Calmer v. Day

203 P. 71, 118 Wash. 276, 1922 Wash. LEXIS 630
CourtWashington Supreme Court
DecidedJanuary 11, 1922
DocketNo. 16722
StatusPublished
Cited by3 cases

This text of 203 P. 71 (Calmer v. Day) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calmer v. Day, 203 P. 71, 118 Wash. 276, 1922 Wash. LEXIS 630 (Wash. 1922).

Opinions

Tolman, J.

— Appellant John Mills Day was, during the year 1920, engaged in the logging business in Kit-sap county, cutting saw logs upon the lands of certain Indian allottees, and by the use of donkey engines, motor trucks, etc., removing and transporting the logs when cut to a temporary wharf in the waters of Puget Sound, where the logs were boomed and sold to saw mill operators as opportunity offered.

On September 13,1920, he gave a chattel mortgage to the appellant Northwest Trust & Savings Bank, covering all of his engines, trucks, tools, logging and camp equipment, to secure the payment of $5,500 of borrowed money, which mortgage, by reason of a misunderstanding, was not filed for record within the ten-day period. Learning of this fact, the bank caused a new mortgage to be drawn and duly executed on November 16, 1920, which was duly filed of record on November 18,1920.

Thereafter respondents, who were laborers employed by appellant Day in his logging operations, caused their lien claims to be duly filed for wages earned largely before the filing of the chattel mortgage, upon all of the logs then remaining in the possession of the appellant Day, and also upon all of the equipment covered by the chattel mortgage, and brought this suit to foreclose such liens. The action was prosecuted under Rem. Code, §1172 et seq. (P. C. §9689 et seq.), and under §1174 (P. C. §9691), appellants filed with their answers, motions and demurrers raising the question of whether respondents are limited to the right of lien upon the saw logs only, as provided by Rem. Code, § 1162 (P. C. § 9679), or may, under § 1149, Rem. Code (P. C. §9737), enforce their liens also against the equipment. Prom a decree adjudging the liens to be prior to the chattel mortgage, upon all of the property [278]*278in the mortgage described, appellants have brought the case here for review.

No question was raised below, nor is any raised here, as to respondents’ lien rights against the logs, but it is strenuously contended that respondents are not entitled to a dual lien or a cumulative remedy giving them the benefit of both of the statutes hereinbefore referred to.

The logger’s lien act, § 1162, Rem. Code (P.C. §9679), is the earlier in time, and it provides, in brief, that every person performing labor upon or assisting in obtaining saw logs shall have a lien thereon for his work and services, and subsequent sections provide for the filing and the enforcement of the lien. The employee’s lien act, § 1149, Rem. Code (P. C. § 9737), subsequently enacted, provides:

“§1149. Laborer’s Lien on Property, Franchises, Etc. — Every person performing labor for any person, company or corporation, in the operation of any railway, canal or transportation company, or any water, mining or manufacturing company, sawmill, lumber or timber company, shall have a prior lien on the franchise, earnings, and on all the real and personal property of said person, company or corporation, which is used in the operation of its business, to the extent of the moneys due him from such person, company or corporation, operating said franchise or business, for labor performed within six months next preceding the filing of his claim therefor, as hereinafter provided; and no mortgage, deed of trust or conveyance shall defeat or take precedence over said lien.”

The subsequent sections provide for filing, service of notice, and that foreclosure may be had “in the same manner as mechanic’s liens are foreclosed.”

The question here presented is a new one in this state, and though each party cites a number of our prior decisions as tending to sustain his position, we find nothing in any of them which is at all helpful, except [279]*279that they recognize that these statutes are remedial in their nature and must be liberally construed.

Nor are the authorities from other jurisdictions such as to lead us to a clear and speedy answer. Respondent cites Faircloth v. Webb, 125 Ga. 230, 53 S. E. 592, and Garrick v. Jones, 2 Ga. App. 382, 58 S. E. 543, but the Georgia statute upon which these decisions rest is so different from our own as to make even a discussion of those cases futile. Appellant chiefly relies upon the case of Pardee’s Appeal, 100 Pa. St. 408. There it appears a logging contractor ceased work, discharged his laborers without paying them in full, and removed his teams and equipment, in good faith, to his farm some ten miles distant, where they were levied upon and sold by a 'judgment creditor, and thereafter the laborers sought to enforce their liens against the fund in the sheriff’s hands arising from such sale. The court, in denying the right to a lien, after setting out the gist of the statute under which the liens were sought to be enforced, said:

“The words, ‘works, mines, manufactory,’ thus employed in the act, have a definite signification, well understood in their general and popular acceptation. Ex vi termini the branches of business intended to be described by them are, in a certain sense, complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. It will scarcely be pretended that either of these words fitly describes the business in which appellant was employed. It is contended however that the expression ‘other business,’ etc., is sufficiently comprehensive to embrace cutting and driving logs. Perhaps it would, if we were at liberty to construe it without reference to the context; but the preceding words, designating particular branches of business with which the idea of permanency and completeness, in a certain sense, is always associated, must control the meaning of the [280]*280more general expression used in immediate connection therewith. The ‘other business’ is ejusdem generis with that more particularly described by the preceding words of the context, business of the same general character, not embracing every species of employment in which the services of others may be rendered.”

Clearly this does not meet our present question. We are asked to define the words of our statute, “any person, company or corporation, in the operation of any railway, canal or transportation company, or any water, mining or manufacturing company, sawmill, lumber or timber company,” as not including one engaged in logging; or, in other words, to hold that “sawmill, lumber or timber company,” cannot include one engaged in getting out logs or timbers, to be sold or transported to a mill for manufacture.

We may put aside everything but the words “timber company” and we then have a statute reading, “Every person performing labor for any person, company or corporation in the operation of any . . . timber company, shall have a prior lien,” etc., and we must determine whether the getting out of saw logs is included in the operations of a timber company. The Standard Dictionary defines the word “timber” thus:

“1. Wood of suitable size and quality for building and allied purposes, cut, squared, sawed, or otherwise prepared for use, especially the larger forms of lumber adapted for beams, scantling, etc. 2. Growing or standing trees from which such wood may be obtained, often called standing timber; in English law, oak, ash, and elm, and sometimes, by local custom, other kinds of trees. 3. A single piece or squared stick of wood prepared for use, or already in use, in framing; a wooden beam; as, the timbers of the house are still strong.”

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Bluebook (online)
203 P. 71, 118 Wash. 276, 1922 Wash. LEXIS 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calmer-v-day-wash-1922.