dissenting:
The first instrument signed by James Whybock is a conveyance of the timber therein referred to, and had there been no other agreement made, the grantors, Dean & Co., would have had the right to at once commence cutting the timber and conveying it to their mill, where by the contract it was to be put to the credit of Whybock. It is not difficult to see why this clause was inserted in the contract. There must be some way of ascertaining the amount of the timber, and the most convenient place was at the mill where it could be measured, and an account taken by persons of experience in such business. It must have been the object of this agreement to secure this timber to Dean & Co. for the use of the mill. It is claimed that the second agreement modified this, and that the same are to be taken together and construed as one contract. So far as the last contract refers to the first, and by its terms modifies it, this is true, but no farther. This second writing is simply an agreement to cut this timber, and by its terms in no way . modifies the contract of the sale of the timber, and does not refer to it in any manner, but it does say that said Whybock, who is to cut all the timber belonging to the said party (meaning Dean & Co.) on the lands of Charles Horner in Coos county, showing that the timber belonged to Dean & Co., which is an acknowledgment that Dean & *431Co. owned the timber that had just been conveyed to them by the first instrument in question. If Dean & Co. had immediately after the execution and delivery to them of the first instrument by Whybock made a contract with a third person in terms like the second instrument now under consideration, I think Whybock could not have questioned their ownership of the timber. The first instrument had completely invested Dean & Co. with it; as much so as the sale of a field of corn by a written contract at fifty cents per bushel, the number of bushels to be ascertained when -harvested, and in a condition to be measured.
This timber standing in the forest on the land was not in a condition to be measured so that the parties could determine the amount. Dean & Co. were to pay for it at fifty cents per thousand feet. The first contract, being in writing, was an executed contract so far as transferring the property was concerned, and put the grantee, Dean & Co., in possession of the timber; as' much as the sale of a field of standing corn would put the purchaser in possession of it. So far as the sale of the timber was concerned, it was complete on the execution and delivery of the written agreement or bill of sale; the seller had nothing more to do to complete the sale. Dean & Co. were to cut the timber and ascertain the amount. There was as complete a delivery of the thing sold as its nature would permit. By this contract the timber was placed at the disposal of Dean & Co., and was so situated that Dean & Co. could begin at once to cut and remove it from the land, and this was a sufficient delivery in such a case.
But to return to the question whether these two contracts should be construed together as forming one contract, the rule laid down in the case of Cornell v. Todd et al., 2 Denio, 130, which case is referred to and relied on as authority for construing the two writings before the court in this case as forming one agreement, is thus stated by Judge Bronson:
‘ ‘ Several deeds or other writings executed between the same parties at the same time, and relating to the same subject-matter, and so constituting parts of one transaction *432should be read and construed together as forming parts of one agreement.”
This is true, ánd it is not necessary that the instruments should refer to each other if in point of fact they are parts of a single transaction. But the learned judge in that case goes on to say, that “Until it appears that they are such, either from the writings themselves or by extrinsic evidence, the case is not brought within the’rule.” Nowin this case there is no reference in either of these agreements to the other; nor are they shown by extrinsic evidence to relate to the same subject-matter. One is a bill of sale of a quantity of standing timber: the other is to manufacture that timber into saw logs, which are entirely distinct subjects, as much so as the sale of timber for a house and a contract to build the house. One is the. sale of property, and the other is an agreement to work for certain hire. And further, I think these written agreements in their terms ignore the conclusion that they were to be parts of one transaction. For if it was the intention of the parties that Why-bock was to furnish timber and deliver logs at the mill of Dean & Co., why did they not simply enter into an agreement that Whybock deliver to Dean & Co. all the logs on this land within two years at five dollars per thousand feet, to be paid for on delivery ?
We must not suppose, without there is some reason, either apparent on the instruments or proven by the testimony, that these two instruments were made where one would have done better. We must give force and effect to both if we can. I think the fair import of these agreements is that Dean & Co., being the owners of a mill, and desiring to secure logs, bought this timber, and by the first agreement secured it to their use. Suppose they did, at the making of the first contract, intend that Whybock should have the contract to cut the timber and deliver it to them. They may, and probably did, judging from after developments, fear that he would not be able to deliver it; then, on his failure, they could have others perform this work which he was employed to do in the second contract. Such a construction will explain and give effect to both contracts, and *433be in accordance with the prudent conduct of careful business men.
I will next consider the matter of the lien of L. Lawham et al. on the logs in question in this action. From the view I take of the rights of Dean & Co. to this timber, "Why-bock, by virtue of the second contract with Dean & Co., became as to them a bailee of work on the thing bailed, or, as it is defined by law writers, “ the hire of work and service, or locatio operis faciendi, such as the hire of tailors to make clothes, or jewelers to set gems.” (Story on Bailments, sec. 422.)
He was to take the timber of Dean & Co. and manufacture it into saw-logs and deliver them at their mill. Why-bock was not obliged to part with possession of the logs until he was paid for his labor; that is, he had a lien on them for such labor. (Story on Bailments, sec. 440.) But when- this lien was discharged by Dean & Co. by paying him for his work, then he was bound to deliver the logs to them, they being the owners, subject to this lien. In this kind of cases, if the property be destroyed while the work is being performed on it, without the neglect of the bailee, the loss falls on the bailor. (Id. sec. 437.)
The bailee in these cases, though he may employ others to assist him in his labor, can not make the bailor responsible for his contracts with such workmen. Fora bailee is an agent with special authority, and can not delegate his powers so as to raise a priority of contract between his principal and his employees, so that those who work on the thing bailed must look to the bailee for their pay. (Story on Bailments, sec. 440; Monk Hollingsworth v. Phineas Dow, 19 Pick. 228.)
This last case cited is in principle identical with the one under consideration. In that case it appeared that Hollingsworth had purchased a machine in an unfinished state, and entered into a contract with one Nesbit, by which it was stipulated that Nesbit should finish the machine for nine hundred and fifty dollars, of which sum two hundred dollars were to be paid when the machine was finished and delivered, and the residue in six months afterwards, and- that *434the machine should be completed in ten weeks from the date of the contract. Nesbit, without the consent or knowledge of Hollingsworth, agreed with Dow to finish the machine. Dow took the machine to his shop for this purpose and did most of the work on the machine.
It appeared that during the progress of the work at Dow’s shop, Hollingsworth, or his agent, came frequently to look at the machine, and occasionally spoke to Dow respecting it. It was held in that case that Dow had no lien on the machine. Nesbit being the bailee of Hollingsworth, under a contract to finish the machine, could not sub-let the contract so as to bind Hollingsworth. He had no authority to contract for Hollingsworth.
In that case Chief Justice Shaw said: “A lien is a proprietary interest, a qualified ownership, and, in general, can only be created by the owner or by some person by him authorized. In cases of innkeepers and a few others who are by law bound to give credit for the keeping of horses, it may well be held that the person putting up the horse at the innkeeper’s stable shall be deemed the agent of the owner, whoever he is, so as to provide for his sustenance, and therefore the innkeeper may have a lien, though the horse be left by a person other than the owner. But the general rule is as above stated — that the right of lien must be given by one having the right of property; and I think there is no doubt that such is the rule unless it has been changed by our statute. I will now consider that subject. Section 13, page 655 of the code, provides that any person who shall make, alter, repair, or bestow labor on any article of personal property, at the request of the owner or lawful possessor, shall have a lien on such property. That statute would give a lien in a case like this; but it was repealed by !a statute approved October 28,1874.
Section 17 of this act provides that: Any mechanic, artisan or merchant, who shall make, alter or repair any article of personal property at thé request of the owner or legal possessor of such property, shall have a lien * * * (Laws of 1874, p. 111.)
This is the only provision of the statute on this subject, *435and the lien of the respondents in this case is not provided for, and I think does not exist under the statute or at common law.
The court below found that as against the defendants the plaintiffs, Dean & Co., were not the owners or entitled to the possession of the property. In this I think the court was wrong, for I think the proper construction of the written instrument purporting to convey this timber to Dean & Co. shows them to be the legal owners of the property, and I think also they were entitled to the possession as against the respondents.
But if they were not entitled to the possession as against the respondents, and had the finding of the court been correct, that the respondents had a valid lien on these logs to the amount of five hundred and eighty-nine dollars and ninety-eight cents, that was the amount and value of their special property in the logs.
In this case, where the court found and had before it, as on a special verdict, the value of the respondents’ interest in the property, they were only entitled to a judgment for the value of that interest. I think in case where in an action by the general owner the defendant is adjudged in lawful possession by virtue of a lien and is adjudged to return the property, his alternative judgment for money in case return can not be had should be the amount of his lien; for all the value of the property above that belongs to the general owner, and the amount of the lien is the value of his special property, and no man is entitled to a judgment for more than belongs to him. (Story on Bailments, sec. 352; 7 Cowen, 670; Warner v. Hunt, 30 Wis. 200; 29 Id. 463.)