Wood, Curtis & Co. v. El Dorado Lumber Co.

HENSHAW, J.

The facts involved in this appeal, briefly stated, are as follows: On February 17, 1904, the defendant and appellant herein, the El Dorado Lumber Company, entered into a contract with the defendants Carney, Roy & Carney for the construction of a single-track railroad, upon a private right of way from North Placerville to its storage yards in El Dorado County. Thereafter, and during the progress of construction work upon said right of way, the plaintiff corporation let to the firm of Carney, Roy & Carney, fifty-three head of horses, with their harness, at the rate of ten dollars per month for each horse and harness. An examination of the record shows that these horses were used by Messrs. Carney, Roy & Carney in the course of the construction work, and that the drivers of the horses were hired and paid for by them. Suit was brought in the superior court of El Dorado County, and on October 31, 1904, the default was entered of defendants Edward Carney, E. J. Roy, and Edward Carney, Jr., and the case was tried as to the defendant corporation.

An examination of the record shows that there was no conflict of evidence upon the proposition that the transaction between plaintiff and the contractors, Carney, Roy & Carney,

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was simply a letting by plaintiff of the horses and harness to the contractors for the doing of this work at a stipulated price per month for each horse. The contractors had full control of the horses during the time of the hiring, and employed and paid the drivers thereof. So far as the findings may be construed otherwise, they are unsupported by the evidence. Upon the theory that in the use by the contractors of plaintiff’s horses and harness in the work of constructing the railroad plaintiff had performed labor upon the railroad, the trial court found it to be entitled to a lien on the railroad for the amount due from the contractors for such hiring.

The question, then, which the trial court answered in favor of plaintiff is: Did plaintiff by this letting of its horses at a stipulated, price per month “bestow labor” upon the work so as to entitle it to a lien under section 1183. of the Code of Civil Procedure? Respondent contends that upon the reasoning, if not upon the direct authority, of

Macomber