Capron v. Strout , 11 Nev. 304 ( 1876 )

By the Court,

Beatty, J.:

This is a suit to foreclose a mortgage given by Strout and Wermuth to the plaintiff. Bobert Stuart was made a party defendant, and in his answer claimed a preferred lien upon the mortgaged premises under the provisions of the laws securing liens to mechanics, miners and others. The district court, in its decree, has allowed his claim, and the plaintiff appeals from the judgment upon the ground that the findings of fact do not support that part of the decree which gives priority to the miner’s lien. The substance of that portion of the findings affecting the points to be here decided is as follows: Plaintiff’s mortgage was recorded February 25, 1874. Stuart had commenced work on the mine June 24, 1873, as foreman, under a verbal contract with Strout and Wermuth, the mortgagors. No time was agreed upon that his work should continue. He was to receive eight dollars per day, payable monthly. His duties were to act as general foreman, to “boss” the men who were at work in the mine, keep their time, and give them orders for their pay at the end of each month. He continued in this employment without any further contract until May 21, 1875. He filed notice of his lion June 3, 1875. During his employment as foreman of the mine, ho also boarded men for his employers, and received money from them, not exceeding the amount due him on board account. No application of the sums so paid was made by either party, at the time, to any particular account, but when respondent filed his notice of lien, he appropriated the amount he had received to the board account. Upon these facts the court concluded that the respondent was entitled to a preferred lien for his wages up to March 2, 1875, amounting to $4080, and the decree directs that sum to be paid to him out of the net proceeds of the sale of the mortgaged- premises, before anything is paid to Capron, the mortgagee.

The first objection of the appellant to this judgment is that the respondent’s right to a lien for Avork done prior to March 2, 1875, Avas destroyed by the repeal on that day of the laAv by Avhich it had been secured. But we think this point has been settled adversely to the claim of appellant by the decision of this.court in the case of Skyrme v. Occidental M. & M. Co. (8 Nev. 219). In this case as in that, the repealing act contains all the provisions of the act repealed, Avhich are necessary to support respondent’s right to a lien, and it must be held, both on principle and authority, that the legislature never intended, by the repeal of the old Iuav, to destroy existing rights. (C. L., sec. 126-140, and Stat. 1875, 122.) The only effect of the new law, so far as this case is concerned; was to give Capron’s mortgage priority to any lien for work done after its passage, and that effect is allowed to it in the conclusions and decree of the court.

The next point of the appellant is, that Stuart’s employment was not of that kind that is protected by the lien huv. It is said that he performed no work or labor in or upon the mine, and it is argued that the intention of the law was to secure those only who perform labor upon the mine with their hands; that to give it a Avider construction, one that will make it include the Avagesof a. foreman like Stuart, will make it cover the case of a general superintendent and other officers of a corporation, and thereby impair the remedy of those who are the special objects of the legislative care. We do not admit that no distinction could be made in this respect between a foreman of miners and the superintendent of a company, but Avhether there could or not, Ave have no doubt that respondent’s claim comes Avithin the spirit as Avell as the letter of the laAv. According to the findings, he certainly did work in the mine, though not Avitli his hands, and it is clear that the direct tendency of his Avork Avas to develop the property. We think the foreman of Avork in the mine is as fully secured by the laAv as the miners Avho work under his direction.

Appellant next contends that the respondent had no right as against him, to. appropriate the money received from Strout exclusively to the board account, and that the court should make the appropriation to the oldest claims; that.is, that it should be appropriated in part, at least, to the labor account. No reason is given, and no authority is cited to sustain this proposition, and we think it cannot be sustained. Clearly, Strout and Stuart had the right to make appropriations without consulting Capron, and if Strout has no objection to the appropriation which Stuart has made, it is difficult to see upon what ground Capron can object.

The appellant complains that the findings and decree give the respondent a preferred lien for certain sums claimed by him under an agreement with Strout that his wages as foreman should continue during a period of thirty days that he was absent from the mine, and that his wages should be doubled for a period of four months if he had to file notice of lien or commence suit. It is unnecessary to express an opinion as to the right of a miner to a lien on the mine for wages not earned by labor on the mine, or for the amount of a penalty agreed upon in case of failure of prompt payment. It is sufficient to say that, in this case, the claims referred to do not appear to have been allowed as against Capron.

These points disposed of, we are brought to the most serious and important question involved in the determination of this appeal.

The appellant takes the ground that the contract under which Stuart commenced work did not cover all the time for which his wages are made a preferred lien, and, consequently, that he has been allowed a preferred lien for work done on a contract or contracts made after notice of the mortgage. And he contends that, although the work done by Stuart may have been continuous, if any of it was done on a contract made after notice of his mortgage, that, as to such work, his lien cannot be preferred.

TVe think that both of these positions are correct. The original contract was for a month’s service at most, and was renewed from month to month by the acts of the parties. In England it has long been settled that a general hiring of a domestic servant, without any specification of time, is a contract for a year’s service, terminable on a month’s notice from either party, and this rule of construction is founded upon the usage of the country. As to other classes of employees, however, there is no invariable rule, though a hiring for a year will be presumed in the absence of any special circumstance tending to prove that the contract was for a shorter term, but very slight circumstances will rebut the presumption. (See authorities collected in notes to 2 Chitty on Cont., 11 American Ed. pp. 840 et seq.) In this country the English rule does not prevail even in regard to the hiring of domestic servants, and as to miners or other laborers employed at so much per diem, payable monthly, there is no authority for holding that either employer or employee contracts for more thair a month’s service. Either party may terminate the employment at the end of the month without notice and without incurring any liability to the other. But if the miner continues to rrork, nothing being said on either side, the law implies a renewal of the original contract, whatever it was, whether for a day, or a week, or a month.

Counsel for respondent argues, that the finding of the district court that Stuart continued to work “without any further contract ” is conclusive that his original contract covered all the work he did. But this position is clearly not maintainable. The finding referred to is one of fact, not a legal conclusion, and only means that Stuart continued to work without any express renewal or change of his contract. The legal conclusion which follows from this fact is, that the contract was renewed from month to month by tacit agreement, evidenced by the acts of the parties, this implication being founded upon the same considerations upon which a tenant who holds over is deemed to hold on the terms of the original demise. The truth, then, was, that every month Stuart .worked, he worked under a new contract, not express, but implied.

There is a further reason why the original contract made on the twenty-fourth of June, 1873, cannot possibly be held to cover ariy work done after June 24, 1874. If it had expressly provided for more than a year’s service, not being in writing, it would have been void (C. L. sec. 289), and tbe law will not imply a contract which would be void if express. This consideration, however, is not the ground of our decision. It goes upon the ground that Stuart’s employment was only from month to month. Capron’s mortgage was recorded February 25,1874, and all the work done by Stuart after the expiration of his then current month was done under contracts made by him after legal notice of Capron’s rights, and his lien for such work is subordinate to Capron’s mortgage. This construction of the lien law is obviously just and necessary. The language of the statute is: ‘ ‘ And all liens herein provided for shall be preferred to every other lien or incumbrance which shall attach upon any property subsequent to the time when the work or labor was commenced,” etc.

The question of construction is: What is the meaning of the words, ‘ ‘ the work or labor ?” What work is meant ? Does the statute mean any work that may be done provided it be continuous from a date prior to notice of the mortgage, though partly under contracts made after notieo of the mortgage ? Or does it mean the work already contracted for before notice of the mortgage ? We think the whole spirit of the act requires that its meaning should be limited to the latter sense. And if this construction did not necessarily follow from the language of the act, we should feel bound nevertheless to give it that construction for the reason that this provision of our law is an almost literal copy of a corresponding provision of the California act of April 19, 1856, from which our law is borrowed, and that provision of the California law had been construed before its adoption in this state in the sense here attributed to it. (See Soule v. Dawes, 14 Cal. 249; 7 Id. 575.)

It does not follow, however, from these views, as contended by the appellant, that Stuart is nob entitled to a preferred lien for the work performed under contracts made prior to notice of his mortgage, for the reason that he did not file notice of his lien within sixty days after the complelion of those contracts.. It .was settled in the case of Skyrme v. Occidental M. & M. Co., above cited, and we think correctly settled, that when tin? work is continuous, tbougb done under different contracts, the lien is preserved by giving notice within sixty days after .the work is ended.

Tbe judgment appealed from is reversed, and the cause remanded with tbe directions to the district court to modify tbe decree in accordance with tbe views herein expressed, and.with costs to tbe appellant.