
    Bradford, Appellant, vs. The Underwood Lumber Company, imp., Respondent.
    
      May 7
    
    
      June 3, 1891.
    
    
      Logs and lumber: Liens: “ Supplies: ” Board: Services in coohing: Apportionment of contract.
    
    1. The word “ supplies ” in sec. 17, ch. 413, Laws of 1889 (providing that • no lien upon logs for supplies shall be had, except in certain counties), includes board furnished to men employed in getting out or running the logs.
    2. Seel 14, ch. 413, Laws of 1889 (giving a lien upon logs for services in cooking food for the men working upon the logs), does not give a lien for board furnished to such men, including the raw materials used in preparing the food; and one who has contracted to furnish such board at a stipulated price cannot have the contract apportioned so as to have a lien for his labor in cooking..
    APPEAL from the Circuit Court for Oneida County.
    Action to enforce a lien upon logs. The facts are sufficiently stated in the opinion. There was a verdict in favor of the plaintiff, assessing his damages at $89, and finding that he was entitled to a lien upon the logs for that sum: From the judgment entered on such verdict the defendant company appealed. .
    The cause was submitted for the appellant on the brief of Miller <& MeCormielc, and for the respondent on that of Levi J. Billings.
    
   Cole, C. J.

The plaintiff entered into a contract with the defendants McPhee and Mitchell to furnish board fop men who were employed by them in running logs upon the Wisconsin river. The price of board was one dollar a day for each boarder. McPhee and Mitchell did not own the logs, but were running them for the owner, the defendant the Underwood Lumber Company. The plaintiff seeks to enforce a lien for the board furnished by him against the logs which the men were engaged in running while boarding with him. The sole question presented is, Does the law give a lien for such a claim ?

The plaintiff lived in Oneida county, and the board was furnished in that county. Whether the plaintiff is entitled to a lien upon the logs which his boarders were engaged in running depends upon the construction of ch. 413, Laws of 1889, which was in force when the board was furnished. Ey sec. 1Y of ch. 413 it is provided that no lien for supplies shall be had under the act except in- the two counties named, which does not include the county of Oneida. The subsequent section repeals certain provisions of the Kevised Statutes, and also certain session laws in conflict with the provisions of the act.

This court, in construing the word “supplies,” as used in sec. 1, ch. 167, Laws of 1879, held that it included board furnished men who were engaged in getting out, driving, or rafting logs and timber. Kollock vs. Parcher, 52 Wis. 393. Now, it is very, evident that, if we give the word “supplies,” as used in the act of 1889, the same construction we did in the act of 18Y9, Ave must hold that it . includes board or food for men, for which the act of 1889 says no lien shall be given; and we certainly perceive no reason for attaching to it a different meaning or signification. Presumably the legislature, when it enacted the law of 1889, knew the sense which this court had given the word in the act of 18Y9, and intended in the later statute to take away the right of a lien for board. This conclusion is irresistible, when the history of the legislation upon the subject is considered. So we must hold that the word “ supplies,” as used in sec. 17 of the law of 1889, includes board furnished thó men employed in running the logs, for which no lien is given.

But the learned counsel for the plaintiff relies upon sec. 14 of the act as giving the right to a lien for board. That section, in effect, provides tbat any and all persons doing or performing any labor or services by cooking food for tbe men who are performing any labor upon logs shall be deemed to have performed work, and shall have the right to a lien therefor, the same as the men for whom the food is furnished. That is, as we understand the section, so far as the right to a lien is concerned, it placed a cook upon precisely the same footing as the other employees performing work upon logs or timber. That is to say, any person who cooks food for men employed in doing any labor upon logs or timber shall have the same right to a lien for his services as such men have for whom the food is cooked. It, in effect, enacts the rule laid down by this court in Winslow v. Urquhart, 39 Wis. 260, where it was held that one who cooked food for men engaged in cutting and driving logs and timber was entitled to a lien under the statute for his services. But' the section must be restricted to the services of the cook, and cannot be extended so as to embrace a claim for board, which includes the raw materials used in preparing the food. The lien is only given to one who cooks the food for those employed to do work upon the timber, where the provisions are furnished by the employer. This construction seems necessary and essential in order to render the different provisions of the law harmonious and consistent, and to effectuate the obvious intent of the legislature to take away all right of a lien for supplies.

It is contended that the word “ supplies,” as used in sec. 1Y, should have a restricted meaning, and be applied only to merchants and dealers in such goods who sell them to persons engaged in getting out logs, wholly apart from any labor to be performed on such logs. We are unable to give the language this construction. It is quite evident to our minds that the legislature intended to deny all liens for supplies, and it is unreasonable to assume that the word was not used in the law of 1889 with reference to the definition this court bad given it in lien cases. This court bad distinctly beld that tbe word “ supplies ” included tbe board of men, even when furnished at an hotel in a city several miles from tbe place where such men were and worked upon logs; and we must presume the legislature was familiar with these decisions, and used the word in tbe same sense, and that it prohibited a lien for tbe plaintiff’s claim.

It is further said that tbe plaintiff, under tbis construction, is entitled to a lien for bis labor in preparing or cooking tbe food for tbe men who were running tbe logs; but that is not tbe theory of the action. Tbe action is based upon a contract for furnishing board for men while driving logs, at a stipulated price. Tbe contract is entire, to fur-nisb a certain thing for a specified compensation, and we do not well see bow there can be an apportionment separating tbe value of tbe materials used in tbe food from tbe labor in preparing it. To so apportion tbe contract would be really making a contract for tbe parties, which the court has no right to do. It well may be, had McPhee and Mitchell employed tbe plaintiff to cook or prepare food for their men, be would be entitled to a lien for bis labor under tbe statute. But, as wq have said, that is not tbe theory of tbis suit, which is to recover tbe value of tbe board specifically and nothing else.

We therefore think tbe trial court erred in not giving tbe instruction asked, that tbe plaintiff was not entitled, upon tbe facts proven, to a lien upon tbe logs in question for tbe balance due on bis claim for board; and tbe judgment giving such a lien is wrong.

By the Court.— Tbe judgment of the trial court is reversed, and tbe cause is remanded with directions to modify tbe judgment in accordance with tbis opinion. It does not seem necessary to order a new trial, as tbe amount due tbe plaintiff from McPhee and Mitchell is not contested.  