Tuckey v. Lovell

71 P. 122, 8 Idaho 731, 1902 Ida. LEXIS 71

• Court: Idaho Supreme Court
• Decided: December 18, 1902
• Status: Published

Opinions

QDAELES, C. J.

— This action was commenced by respondent, Frank J. Tuekey, a minor, by his guardian ad litem, Elias Tuckey, his father, to enforce a lien upon a certain crop raised by the appellant, in the cultivation of which it is claimed that said respondent, Frank J. Tuekey, performed work and labor with himself and with four horses at the agreed price of three dollars per day, amounting to the sum of sixty-three dollars and seventy-five cents, and for attorney’s fees for enforcing said hen in the sum of forty-five dollars. The statement of said laborer’s Hen in writing was executed by said Elias Tuckey, as guardian ad litem of said Frank J. Tuckey, and duly verified by said guardian ad litem, and recorded in the office of the county recorder of Latah county on the eleventh day of May, 1901. The defendant answered, denying the material allegations of the complaint specifically, excepting the allegations set forth in paragraphs 7, 8, and 9 of the complaint, which allegations the said answer admitted, excepting it denies that forty-five dollars, or any other sum, is a reasonable attorney’s fee to plaintiff in the action. The defendant sets forth in his answer the further defense that said Elias Tuckey, the father of the said Frank J. Tuckey, was indebted to defendant upon account of one hundred and fifty-one and one-half bushels of wheat sold and delivered by said defendant to said Elias Tnekey in October, 1897, at the agreed price of fifty-eight cents per bushel, maldng a total of eighty-eight dollars; that thereafter said Elias Tuckey paid a portion of said account for said wheat, to wit, thirty dollars, in the labor of his said son; that thereafter said Elias Tuckey promised and agreed that he would furnish to appellant the services of his said son, Frank J. Tuckey, and his said four horses, for the purpose of paying the balance due upon said account, and that pursuant to said agreement said Elias Tuckey did send his four horses and his said son, Frank J. Tuckey, a minor, to the farm of appellant to labor and work for the purpose of paying said balance of said account. The record shows that appellant agreed with said minor, Frank J. Tuckey, that the price of said labor should be the sum of three dollars per day for the labor of said Frank J. Tuckey and four horses; and that said Frank J. Tuckey, with said four horses, labored upon the farm of the appellant, plowing for the purpose of seeding the said crop described in the claim of said laborer’s lien, for the period of twenty-one and one-fourth days, amounting to the sum of sixty-three dollars and seventy-five cents, no part of which has been paid, except the sum of one dollar, paid thereon in blacksmithing — sharpening a plow. The court made findings of fact in favor of the respondent, and conclusions of law to the effect that the respondent, Frank J. Tuckey, had a lien upon the said crop to the extent of sixty-two dollars and seventy-five cents, and for the further sum of one dollar and seventy-five cents for verifying and recording the said statement of lien, and the sum of forty dollars attorney’s fees. From the decree based upon said findings appellant has appealed to this court. The defendant moved for a new trial upon a statement on motion for a new trial and upon a bill of exceptions, which contains the evidence introduced in the trial court, which motion for a new trial was denied, and the appellant also appeals from the order denying a new trial.

There are two questions in this case: 1. Was said work and labor performed by said minor, Frank J. Tuckey, for and on-behalf of his father’s account, or for and on behalf of his own-account, working for his own benefit; and was that the understanding between the parties in this regard? 2. Even though it be held that said Frank J. Tuckey was entitled to compensation for the value of his own personal services, yet, under the circumstances, his father being indebted to appellant, and having agreed to pay appellant with the services of his son and horses, could the father donate the services of his horses to his infant son, and thus defeat the payment of the debt due from him to the appellant, his creditor?

It is shown in the evidence by both the father and mother of said minor, Frank J. Tuckey, that before performing the labor-in question for appellant the said father informed the boy that he might have whatever he earned in the way of services performed; but a careful review of the evidence convinces us that notice to this effect was not published to the world, and that appellant did not understand that he was to pay the boy for such services. On the other hand, that it was the understanding beween the parties that the services of the said minor and of said horses should be credited upon the account which the father of said minor owed to the appellant, and in this respect the findings of the court are not supported by the evidence. But going beyond that question, it is a well-established rule of law, as well as of equity and justice, that men must be just before they are generous. Being indebted to appellant, said Elias Tuckey cannot, in law, be permitted to clandestinely donate the time and services of his horses, which is property, to his infant son, for the purpose of defeating the payment of his debts; hence it is palpable that no lien existed as against appellant for the value of the services of the said four horses performed in plowing for the appellant, but the same should be credited upon the account due and owing from Elias Tuckey to appellant, if such was owing. At the trial the defendant offered evidence proving such indebtedness as alleged in his answer, and the court refused to permit him so to do. To this ruling of the court he duly excepted, and the action of the court in this regard constitutes the basis for one of the errors assigned. This action of the court was error prejudicial to the rights of defendant, and was reversible error. Appellant was entitled at the trial to prove said evidence. At the trial respondent offered to and was permitted to introduce in evidence that portion of the original record book in the county recorder’s office of Latah county showing the record of said claim of lien, to which the appellant objected, and duly excepted. The admission of such record was not prejudicial error. The better practice would be, in case of the loss of the original, to introduce a certified copy of the record, instead of the original record.

If it be a fact that Elias Tuckey had emancipated his said son, Frank J. Tuckey, and that the latter was entitled to his personal earnings, and that these facts were known to the appellant, then said Frank J. Tuckey would have a lien for the value of his personal services, but not the services of said horses. But if said facts were unknown to appellant, and he received the said services of said Frank J. Tuckey with the understanding between him and the father of said Frank J. Tuckey that the latter, with said horses, was to work in payment of said account, then said Frank J. Tuckey would have no lien upon said crop, except as to any excess that may remain after payment of such account to appellant if same was due and owing to him.

Inasmuch as the judgment must be reversed on account of the errors herein pointed out, the case should be retried in the district court. Judgment reversed, and cause remanded to the district court for further proceedings consistent with the views expressed in this opinion. Costs of appeal awarded to the appellant.

Sullivan, J., concurs.