Warren v. Thacher , 12 Me. 351 ( 1835 )

Emery J.

— This is an action of assumpsit on the following engagement of the defendant: “ Whereas Mr. Artemas Warren.. “ and Son are hauling lumber for Hatcil Delano, the present “ season, I hereby agree to pay said Warrens their wages of “ twenty-eight dollars per month, for a team of 4 oxen and driver, “ out of the net proceeds of said lumber, when sold by me.

“ Samuel Thacher, Jr.

“ Feb. 4th, 1832.”

It was admitted, that the plaintiffs worked two months, commencing ls¿ December, 1831, and were originally employed by Delano.

Whatever may have been the agreement of Thacher & Parker with Delano, we cannot think, under the contract with the plaintiffs in this case, that their right should be restricted by any other charges than the stumpage on the lumber, which was $126,26. The nett proceeds of the lumber, when sold, are to be ascertained by deducting that sum from the $536,60, for which the 547 logs sold, and which was received by Thacher & Parker, whom the defendant represents.

There was then four hundred and ten dollars, thirty-four cents nett proceeds in the hands of the defendant, and as the demand was seasonably made, we are all of the opinion, that as the defendant, after the labor was done by the plaintiffs, voluntarily engaged to pay their wages out of the nett proceeds, that he must perform the engagement. For there is nothing in the case to show that the defendant made any qualification to the plaintiffs, that they should be subject to any deduction on account of supplies to Delano and Willis. No allusion is made to the matter. And if supplies have been so extensively made to them, the defendant must look to Delano, or Delano and Willis, for indemnity. The plaintiffs here make no claim to the logs against the defendant’s lien. But they claim only remuneration for their labor, from the nett proceeds of the sale, which the defendant has effected.

And as the case is referred to the opinion of the Court, the defendant must be defaulted, and judgment rendered for the plaintiffs.