Eccleston v. Hetting , 17 Mont. 88 ( 1895 )

De Witt, J.

That a subcontractor of a subcontractor in the third degree is entitled to a lien, under our statute, was decided in Duignan v. Montana Club, 16 Mont. 189, which case follows to its legitimate conclusion the views which had been expressed preliminary thereto in the case of Merrigan v. English, 9 Mont. 113.

We are of opinion that the facts in this case bring it within the interpretation of the statute made in the case of Duignan v. Montana Club. Here Carroll & Co. were the contractors, Hetting was subcontractor, and the plaintiff the second subcontractor. We do not think that Carroll’s contract was simply for a sale and delivery of the ties. It was for the furnishing of ties to the railroad company, to be used in the construction of the railroad. They were used in the construction of the railroad. The contract was to furnish the ties, — to deliver them complete and ready for use. The constituent elements of the final result to be produced were the cutting and preparing of the ties, and delivering them to the railroad company at a point on their line. This contract was sublet to Hetting. One of the elements for the complete result was sublet by Hetting to the plaintiff, to wit, the moving of the ties to the railroad. Hetting did not employ plaintiff as a teamster, or as a servant in any way.

It is urged by respondents that one may not have a lien for freight, but this is not a question of freight. The hauling of the ties was a constituent and absolutely essential element in the main contract which was to furnish the ties. Hetting gave to plaintiff an independent contract for a portion of the original whole contract, that portion being the hauling. The plaintiff’s work and labor went to the railroad company, and into the structure as ties, as a completed product, as thoroughly as did the labor of the men who cut the ties and dressed them. The whole contract consisted in laying the ties down, ready for use, on the line of road. A portion of this whole contract was performed by the plaintiff as a subcontractor of a subcontractor.

We are therefore of opinion that he brought himself within the class of persons entitled to a lien. It is therefore ordered that the judgment be reversed, and the cause remanded to the district court, with directions to overrule the demurrer.

Reversed.

Pemberton, C. J., and Hunt, J. concur.