In re Deutschle

¶16ARCHBARD, District Judge.

¶17A claim has been proved by J. Wesley Kemery for $153.56, which is said to be for wages, and priority is sought for it on that basis.

¶18The claimant worked for the bankrupt under a written contract, a copy of which is given in the margin.† The total amount coming to *432him at- the time-of the failure was $495.84, hut $342.28 of this was due to the men under him, who proved their claims and got them paid as wages; and it is the balance only that is now in question. The referee denied priority to the claim, simply allowing it to come in as an ordinary debt, along with other creditors, and it is this action that is the subject of exception.

¶19The establishment of the bankrupts was a sash, door, and blind factory, and the claimant had charge of the blind department, with some 10 or 12 men working for him. These men he employed and discharged, and was responsible for the work that they turned out; but for the sake of convenience they drew their wages from the bankrupts, pay rolls being made out by the claimant and turned in for that purpose. The compensation of the claimant was regulated by an agreed schedule of prices; the bankrupts, with one or two exceptions, furnishing the materials as well as the. tools and machinery, and the claimant the required labor.; For time work he was to get a cent an hour above that which he paid to the men employed by him, and was to pay the same for that which he himself required of the bankrupts *433to complete his piece work. And the claim as made out corresponds with this. In March, 1909, there is a charge of $39.63, for the work of certain employes so many hours at so much an hour. In April there are charges for piece work turned out, mainly blinds, and also for the work of employes, aggregating together $383.36. And in May the charges are $106.39, and are of a similar character, with $34.09 of deductions. This, with a charge of $1.65 by the claimant for helping to take an inventory, makes up the total, $495.84, on which, as already stated,' the bankrupts are credited with the wages of employes paid by the trustee, $342.38, leaving $153.56, the amount in issue.

¶20The case is controlled by the bankruptcy act, which gives priority, among other things (section 64, subd. 4), to:

“Wages due to workmen, clerks, traveling or city salesmen, or servants, which have been earned within three months before the date of the commencement of proceedings, not exceeding $300 to each claimant.”

¶21The amount of the present claim and the time when it accrued are within the terms of the statute; but the question is whether the claimant was a workman, and his compensation wages. As understood in the statutes giving a preference to wages, a workman is one who works for others at manual labor, skilled or unskilled. Commonwealth v. Butler, 99 Pa. 535. And the reward of his labor is wages. It is none the less such because it is paid for by the piece. Pennsylvania Coal Company v. Costello, 33 Pa. 241. But it is not wages, where payment is by the job. Heebner v. Chave, 5 Pa. 115. As for sawing lumber at so much a thousand. Lang v. Simmons, 64 Wis. 529, 35 N. W. 650; Campfield v. Lang (C. C.) 25 Fed. 128. Or threshing a quantity of grain at so much a bushel. Johnston v. Barrills, 27 Or. 351, 41 Pac. 656, 50 Am. St. Rep. 717. Nor where it is profits on the labor of others. Smith v. Brooke, 49 Pa. 147; Sleeman v. Barrett, 2 H. & C. 934; Riley v. Warden, 2 Exch. 59. And it does not help this that the person himself takes part in the work. Berkson v. Cox, 73 Miss. 339, 18 South. 934, 55 Am. St. Rep. 539.

¶22Judged by these authorities, the claimant is not entitled to a preference. He was. not a workman within the meaning of the law, and neither were his earnings wages. He had charge, no doubt, of the blind department of the bankrupts’ factory; but he was not a foreman or head workman, so as to bring him within the statute. The relation was peculiar. The men under him were his own, hired and discharged by him, and he was paid for the work which they turned out at so much a piece, and was answerable for it, as, for instance, if it was spoiled, or not properly finished. This work was done at the factory of the bankrupts, with the aid of materials and machinery which the bankrupts furnished, but was none the less that of the claimant; the men working for him and under his direction, in making blinds, which he had contracted for. When they went outside of this, to do work for the bankrupts, the claimant was entitled to a cent an hour advance on the wages that he paid them; and he was charged the same amount when any of the bankrupts’ men were called upon to assist him. The bankrupts, it may be, supervised it all, and at times gave directions. And the hours of the men were regulated by the *434shop whistle, just as their wages were taken care of by the bankrupts, for the claimant, on pay day. The blind department, also, as so organized, was a part of the general establishment. But the fact remains that the claim presented here, for which priority is asked, arises out of a contract with the bankrupts, by which the claimant agreed to put out certain work for a certain price, furnishing his own men, and getting the benefit of their labor. The labor done was not his, but that of his men, however he may have, in a general way, participated in it; and he profited according as he managed to get good work out of them. In this he was not a workman or laborer, but an employer of labor, and the remuneration to which he was entitled was not wages, but an agreed price for articles produced, which the law does not undertake to preferentially provide for.

¶23A claim is also put forward by D. A. Shollenberger in the same way, but is not materially different. He worked for the. bankrupts under a similar arrangement; the contract being verbal, having been put in writing, but not executed. He also, the same as ICemery, had charge of a part of the mill, the sash department, and was to furnish the men, while the bankrupt supplied the machinery and materials, with certain small exceptions; the compensation being fixed by a schedule of prices, according to the character of the work, for which he was to be responsible. If the bankrupts cut out the stock for the windows, there was to be a corresponding reduction. The claim, as made out, is for $174.04, and is mainly for windows. He had from four to eight men working for him, whom he hired and paid, although there was a provision that his monthly pay rolls were to be taken care of by the bankrupts; and this was done at times, but not always, the claimant usually drawing the money which was coming to him, and doing his own paying.

¶24There is nothing in all this to distinguish the claim from that of Kemery, and it must be similarly disposed of. As to the bankrupts, the claimant was an independent contractor, agreeing to do certain work by means of the men he. employed, and being paid accordingly. No doubt he gave his time and attention to the job, which he had to do, if he expected to prosper from it; but that did not make him a workman, nor what he was to get wages.

¶25The exceptions are overruled, and the report of the referee is confirmed.