& MERCHANTS' TEL. CO. OF INDIANA t1. BANKERS' & MaROHANTS' TEL. Co. OF NEW YORK.
(Oircuit OO'Urt, D. Indiana. April 24, 1886.)
One who, under contract with a telegraph company, has strung wires upon the poles of the company, cannot, without an agreement to that effect, retain possession and assert a lien by turning the ends of the wires into the ground. I. BAM_LIEN FOR LABOR-REV. ST. IND. 1881, § 5286. A contractor who is employed by a telegraph companv to put on arms and inSUlators. and string wires on poles, the material to be furnished by the com· pany, at a designated rate per mile, is not an employe within the meaning ot Rev. St. Ind. 1881, $I 5286, and entitled to a lien for the work so done.
1'ELlCGRAPH COMPANlES-CONTRACT TO
PuT UP WIRES-COMMON-LAW
In Chancery. Exceptions to master's report on intervening petition of James E. Vane. WOODS, J. The two questions presented for decision are stated by the master as follows: "(1) Mr. Vane, the petitioner, was employed by the telegraph company to put on arms and insulators, and to string six additional wires, (the company having already four wires in use,) on the poles of the company from Freeport junction, Ohio, to Lake Station, Indiana, 8 distance of 248 miles, for $45 per mile. The company agreed to furnish and deliver to Vane, at the nearest accessible railway stations, all the necessary material for the work. Vane was to do or furnish the labor necessary to string the wires, etc. He did the work. hiring men for the purpose and assisting in person." The master is of the opinion that in doing this work Mr. Vane was an employe of the company within the meaning of section 5286 of the Revised Statutes of Indiana of 1881. "(2) Vane also asserts a right to a common-law lien based upon the following facts. which are not controverted: 'rhe contract with Vane was made in June,1l:!84. November 12. U,84. the work was practically done, but the connections were not made. Mr. Vane kept possession of the wires by refusing to allow connections to be made. and turned the ends of the wires down into the ground. He retained such possession until November 20. 1884, when he delivered possession to the receiver, with an agreement that such delivery was not to impair any rights or lien he might then have by virtue of such possession. He had such possession when the order allOWing the issue of recpiver's certificates was made, and also when the certificates were issued, November 11, 1884. I n'port and find that, by perfecting his claim for a lien under the statute, Mr. Vane waived the right, if he had any, to assert his, commoll-Iaw lien" In the opinion of the court, the petitioner had no lien at common law (lr in equity, and was not an employe of the telegraph company within the meaning of the statute referred to by the master. That statute provides that "the employes of any corporation doing business in this state shall be entitled to have and hold a first and senior lien upon the corporate property, and the earnings thereof, for all work and labor done by sueh employes for such corporation." To be entitled to the benefits of this. statute, and others of like character since
enacted, I think it clear that the employe must have been a servant, bound in some degree at least to the duties of a servant, and not, like the petitioner, a mere contractor, bound only to produce or cause to be produced a certain result,- a result of labor, to be sure,-but free tp dispose of his own time and personal efforts according to his pleasure, without responsibility to the other party. In respect to the sums found due the petitioner, the report is eonfirmed, but to the allowance of a lien exceptions sustained. Ordered
TAYLOR and others v. ROBERTSON and others.1
(CVrcuit Court. N. D. illinois. May 24, 1886.)
Report of master upon question not referred to him by court is erroneous, and subject to exception by party aggrieved. Small errors in master's statement of an account held not ground for reo quiring him to restate account, even in case in which exceptions to his report were sustained on other grounds.
SAME-ERRORS-RESTATEMENT OF ACCOUNT.
BLODGETT, J. On a former hearing of this case! the question of the complainants' right to redeem the premises in controversy was fully considered, and such right to redeem sustained, and a reference made to one of the masters of the couri; to state the account between the parties. By the master's report, filed on July 15, 1885, it is found that there was due to the widow, heirs, and representatives of David R. Green, on June 12, 1885, the sum of $45,641.66 as the amount required to be paid to redeem the property in question from the lien thereon held by the estate of said David R. Green. By a recent order of the court, the master has brought the statement of account to the first day of April, 1886, showing the amount then due the estate of Green to be $45,342.86. Both complainants and defendants have filed exceptions to the master's report, which have been argued by counsel, and duly considered. The first exception of the complainant is to the finding of the master that the allegations of fmud in the bill are not sustained by the proof. This exception is, I think, well taken, because t4e finding is upon a matter not referred to the master to consider or report upon. The only reference to the master was to take and consider proofs upon the question of the amount to be paid by complainant to redeem the premises in question from the lien of the Green es. tate; all questions as to fraudulent conduct of the defendants, or any of them, having been considered and passed upon at a former hearI Reported by Russell H. Curtis, Ellq., of the Chicago bar. 221 Fed. Rep. 209.