
    Norman & Co. v. Edington, Groner & Griffiths et al.
    
    (Knoxville.
    September Term, 1905.)
    RAILROADS. Laborer’s lien. Notice must be given by claimant himself, and not by assignee of claim.
    Acts of 1891, ch. 98 (Shan. Code, secs. 3580-3586) provides, among other things, that every contractor, laborer, materialman, or other person or persons, who performs any part of the work in grading any railroad company’s roadway, or who constructs or aids in the construction or repair of its culverts and bridges, or furnishes eross-tie.s, or masonry or bridge timbers used in the building of such railroad, or aids in the laying of its track, -or who performs any valuable services of which any such railroad company receives the benefit, shall have a lien on such railroad for the value of such work and labor done, or material furnished, or services rendered; but to secure this lien such subcontractor, laborer, or materialman shall within ninety days after such work and labor is done, or such materials are furnished, or such services are rendered, notify in writing any such railroad company that such lien is claimed.
    
      Held:
    
    (1) That written notice to the railroad company within ninety days is an essential prerequisite to the enforcement of the lien given by the statute.
    (2) The notice must be given by the subcontractor, laborers, or materialmen themselves, and the assignees of claims for work and labor done in the construction of a rail- ■ road cannot obtain the benefit of the lien provided by the statute, where their assignors had failed to give the required notice to the railroad company, although, subsequent to the assignment, and within the statutory period, the assignees themselves gave the notice to the railroad company of their intention to claim the lien as such assignees.
    
      Act cited and construed: 1891, ch. 98.
    Case cited and approved: Duncan v. Hawn, 104 Cal., 10, 37 Pac., 626.
    Cases cited and distinguished: Couper v. Gaboury, 69 Fed. R., 7, 16 C. C. A., 112; Perry v. Duluth Transfer Co., 56 Minn., 30i6, 57 N. W., 792; Union Trust Co. v. Walker, 107 U. S., 596, 27 L. Ed., 490; Burnham v. Bowen, 111 U. S., 776, 28 L. Ed., 696.
    PROM KNOX.
    Appeal from the Chancery Court of Knox County.— Joseph W. Sineed, Chancellor.
    Templeton, Lindsay & Templeton, for Norman & Co.
    John W. Green and Cornick, Wright & Frantz, for Edington, Groner & Griffiths et al.
    
   Mr. Chief Justice Beard

delivered the opinion of the Court.

The single question raised by the facts found by the court of chancery appeals in the present case is whether complainants, as assignees of claims for work and labor done in the construction of the Knoxville, La Follette & Jellico Railroad Company, by the employees of an insolvent subcontractor, can enforce a statutory lien for these claims, where their assignors (the employees) had failed to give notice to the railroad company of the fact that they relied upon this lien for the security of,these claims, but subsequent to the assignments the' complainants themselves, as such assignees, gave this notice. .

The answer to this question is to be-found in the statute; for independent of this the assignors of complainants, not being in privity with the railroad ; company, would have had no right against its property, and, a for-tiori, the complainants, as such assignees, would have none.

- The statute relied upon by complainants to sustain their claim is found in chapter 98 of the Acts of 1891, p. 215. The first section of this statute creates the lien and provides the remedy for the unpaid employees* of, a-dep faulting subcontractor who does work upon a railroad. This section, subdivided, is carried into sections 3580, 3581, of Shannon’s Code. Section 3580 provides as follows: “Every subcontractor, laborer, materialman or other person, or persons, who performs any part of the work in grading any railroad company’s roadway, or who constructs or aids in the construction or repair of its culverts and bridges, or furnishes cross ties, or masonry or bridge timbers . . . used in the building , . . of such railroad . . . or aids in the laying of its track . . ■ or ■ who performs any valuable services > . = . by [of ?] which any such railroad company receives the benefit . • . . shall have a lien on such rail.road . '. . for the value of such work and labor done, or material furnished, or services rendered, as hereinbe-fore sé't out and specified . . . “Section 3581 is in the folio-wing words: “But to secure this lien such subcontractor, laborer, materialman, or other person or persons rendering the hereinbefore mentioned services, shall within ninety days after such labor and work is done . . . or Such materials are furnished, or such services are rendered, notify in writing any such railroad company . . . that said lien is claimed ...”

We think the terms of these two sections are so plain as to require but little, if any, interpretation. Confessedly, the assignors of these complainants who did the work and labor in question upon the roadway of the defendant railroad company are within one of the classes provided for in section 3581, and, their claims being unpaid, they might have enforced a lien against the property of the company for the satisfaction of these claims. To do this, however, notice to the company, under the terms of section 3581, was an essential prerequisite. And we think that it was equally essential that this notice should be given by the right party and at the right time. To obtain the benefit of the lien given by section 3580, it was necessary that parties relying upon such lien should themselves give this notice.- The provision of the statute is that “such subcontractor, laborer, materialman, or other person or persons, rendering the hereinbefore mentioned services,” shall within ninety days, etc., notify in writing, etc. We see no reason for bringing an assignee of such laborer within the spirit or the letter of this statute by judicial construction than there would be for extending the time for the giving of the notice beyond the period of ninety days therein prescribed. In each of these particulars the statute is free from ambiguity.

We are unable to find, as is urged by the counsel of the complainant we should, anything in the terms, “or constructs, or aids in the construction,” or, “by which any such railroad receives the benefit,” found, in section 3580, which authorizes a court to give the benefit of this statute to one who acquires the claim of a laborer secured by an inchoate lien, as in the present case, and who subsequently undertakes to convert this into a fixed lien by giving the notice.

Complainants, through their counsel, rely for authority to support their contention upon a class of cases of which Couper v. Gaboury, 69 Fed., 7, 16 C. C. A., 112, and Perry v. Duluth Transfer Co., 56 Minn., 306, 57 N. W., 792, are two, which hold that, under statutes providing for liens in favor of persons who “perform” labor, a person, such as a contractor, who furnishes the- labor of his employees in doing the work, is to be considered as the one who did the work, and, as such, entitled to the lien. These, authorities, however, cannot avail complainants, for the notice which they gave to the railroad company, and upon which they must stand, is that of assignees of laborers who did work in the construction of its roadway. In these notices there is no suggestion that complainants claimed the lien as the furnishers of labor through their employees, but, to the contrary the company is notified that they'rest their claim for the security of this lien upon the assignments made to them by the laborers, whose names, with the amounts due to each, are tabulated therein. In addition, it is found as a fact by the court of chancery appeals that they did not •furnish labor, but acquired their claims by dealings with the laborers. ’’

Complainants also rely, upon Union Trust Co. v. Walker, 107 U. S., 596, 2 Sup. Ct., 299, 27 L. Ed., 490, and Burnham v. Bowen, 111 U. S., 776, 4 Sup.. Ct., 675, 28 L. Ed., 596, as authority for their insistence. An examination of these cases discloses, however, that they did not involve the question of either a commondaw or statutory lien, but in both of them the court recognized and applied the now familiar rule that in equity the earnings of. a railroad in the hands of a court’s receiver constitutes primarily a fund for the' payment of' expenses incurred in its operation, and, if they be diverted for the betterment of the railroad, or in any other way to the benefit of the holders of the mortgage debt, then out of the proceeds of the sale of the property, to the extent of such diversion, parties who have contributed labor or money to the operation of the road by the receiver will be provided for, and in the first of these cases an assignee of such a claimant was given the benefit of this equitable rule.

Neither of these cases, nor any other, to which we have been referred, raises the question we are here considering; that is, whether an assignee of laborer’s claim under such á legislativé enactment as ours can perfect an inchoate lien by giving notice as assignee after lie had acquired the claim. -

After all is said each case depends upon the terms of the statute under which it arises. The result is that opinions of other courts based on statutory provisions, either unknown to the tribunal dealing with the casé in hand, or, unlike those which control it, are of but little value as authority. It is true, however, that a majority of the courts hold that a lien like the one created by this statute is so far personal that in the absence of statutory authority there can be no assignment of the right to perfect or create it. It is said in Duncan v. Hawn, 104 Cal., 10, 37 Pac., 626: “Until perfected by filing the proper notice, it is a mere inchoate light, personal to the individual, which he may choose to perfect or not, at his pleasure, and which until perfected has no tangible existence as property, and, of course, as such is not the subject of transfer.” It would no doubt be otherwise with regard to the assignment of a claim the lien for the security of which had already been fixed by a statutory notice given within the proper time by the assignor.

Other questions were made at the bar, but these were answered by the facts found by the court of chancery appeals, leaving the one we have been considering as only open for discussion. We are satisfied that the holding of that court, on this question is correct, and in all things its decree is affirmed.  