Matzewitz v. Wisconsin Central Railway Co.

123 N.W. 121, 140 Wis. 643, 1909 Wisc. LEXIS 309

• Court: Wisconsin Supreme Court
• Decided: November 12, 1909
• Status: Published

Opinion

Maeshall, J.

Was tlie person upon whom the notice was served the defendant’s engineer, agent, or superintendent, in its employment, having charge of that part of the road on which the labor was performed ? It is contended for appellant, that the finding in the affirmative is contrary to the clear preponderance of the evidence, because the statute contemplates that the person upon whom service is required to be made shall be the particular employee, in such charge of. the work as to be likely to know the facts in regard to the claim.

We can see no good reason for restricting the plain meaning of the statute by construction. It means, doubtless, just what the ordinary sense of the words signifies. The person upon whom the service must be made, in any such case, is the one who, as engineer, agent, or superintendent for the railroad company, has charge of that part of the road on which the labor was performed. It is the one who has such general charge, whatever may be his designation.

Had the legislature intended the service to be made upon the employee in the immediate charge of the construction work, it would have said, in charge of the work instead of "of the road.” The purpose, doubtless', was to require the service to be made upon an employee of such grade as to be likely to promptly bring home to the corporation knowledge of the existence of the claim, rather than upon one sufficiently in touch with the particular work as to know whether the claim was legitimate or not. Such purpose was not, merely, to enable the .particular person, primarily receiving the notice, to report tbe facts, but to reach the corporation and give it reasonable opportunity to protect itself against a double liability which would result by paying the contractor and then having to pay over again to the laborer.

That the person upon whom the notice was served in this case had general authority over that part of the road contemplated by the statute, requisite to competency to receive the service, is amply shown by the evidence.

The claim that the statute should be construed as requiring a notice to be served on the person in the immediate charge “of the construction” of that part of thp road in regard to which the labor was performed, when it relates to such construction wort, is effectually negatived by the fact that, whereas, formerly, for a long period of time, service, in such cases, was required to be made on the person “in charge of the construction work,” the statute was changed to its present form so as to require it to be made on the person “in charge of that part of the road” on which the labor was performed, thus pointing to a person higher up in grade than the one in the immediate charge of construction work.

It is considered that the circumstances, amply shown by the evidence, that the plaintiff merely delivered his claim to a person for collection, writing his name on the back thereof as evidence of the authority, and borrowing a small sum on such claim, warranted the conclusion that there was no parting with the title so as to take the claim out of the protection of the statute, under the doctrine of Fraker v. Reeve, 36 Wis. 85, and similar authorities, to the effect that the special statutory provisions for the protection of creditors in particular cases, such as this, do not follow the creditor right into the hands of a purchaser. That does not apply where there is no parting with title to the right by the original creditor, but only the creation of a mere agency, coupled with an interest, to enforce such right, in general, for the benefit of the creditor, as held in Bernhardt v. Rice, 98 Wis. 578, 74 N. W. Tbe logic of tbat case is tbat a transfer of a claim wbicb does not pass tbe beneficial interest is not a sale and ■so is not an attempt to transfer a lien or a claim witb a lien incident.

True, a statutory liep. incident to a contractual claim, unless made so by tbe statute, is not transitory in tbe sense of Being assignable, but, so long as there is no transition of tbe beneficial interest, there is no severance from tbe claim, or loss, of tbe lien incident.

Counsel refer to the rale tbat be who takes tbe title to a nbose in action as security bolds tbe legal title and, ordinarily, in judicial proceedings to enforce it, is tbe person who must be tbe plaintiff as the real party in interest; but we must distinguish between a transfer of title carrying tbe beneficial interest, primarily, though secondarily operating to discharge a debt of tbe vendor, as in Fraker v. Reeve, supra, and tbe mere creation of an agency to collect and apply or account for tbe proceeds, as in Bernhardt v. Rice, supra, and this case.

By the Court. — Judgment affirmed.